Defending Your Deposition Witness - ABA YLD 101 Practice Series

By Amy Davis Benavides

Deposition testimony has the potential to make or break a case. Indeed, pre-trial testimony often determines the settlement value of a case or even the parties' amenability to settlement. Proper preparation can ease the tension most witnesses experience at giving sworn testimony, particularly when they are a party to the suit. It can also help the witness avoid answering unclear and even misleading questions. Finally, ample preparation can help assure that the witness engages, rather than alienates, the finder of fact. The four Ps for witness preparation will ensure you and your witness will make the best impression at deposition: Preparation, Practice, Protect and Polish.

Provide the witness a thorough course on depositions, keeping in mind that most witnesses are unfamiliar and intimidated by the deposition process. Explain that a deposition is simply a question and answer session where the witness will provide information, under oath, usually for the purpose of providing opposing counsel new information about the subject matter of the lawsuit and to commit the witness to a version of the facts concerning the lawsuit. Describe the people who will attend the deposition and their role in the process, including your role to provide legal advice at appropriate times, if needed, and to protect the witness from harassing and/or misleading questions and behavior. Because a deposition is governed by a different set of rules than an ordinary conversation, and because the witness' statements and appearance will be closely scrutinized by opposing counsel and, ultimately, the fact finder, provide the witness specific information about how to conduct himself or herself at the deposition.

First and always foremost, you must be totally and completely honest. The opposing party has the right to discover all facts related to the lawsuit. Nothing is gained by hiding any information, or by being deceptive.

Listen to each question carefully and be sure that you understand it before answering. If you do not understand the question, ask the attorney to repeat it or rephrase it.

Understand the question. It is critical that you understand what the other attorney is asking. If the attorney uses buzzwords or technical terms, have the attorney define them for you. Do not assume the attorney means the same thing you mean when he uses ambiguous or technical terms. Do not be embarrassed to ask the attorney to define words or to rephrase the question.

Think about your answer before you say anything. You don't need to hurry in answering the question. The court reporter will not record lengthy pauses or time in which nothing is said. Consequently, pause before answering questions to make sure you understand it and to formulate your answer. Don't think out loud. If the question is open-ended, mentally outline your answer before speaking.

Answer the question truthfully, but only answer the question asked. Do not be afraid to say that you do not know, cannot recall or do not have the expertise to give an opinion.

Answer the question fairly, but do not volunteer information. During normal conversation, we often anticipate questions and volunteer information. You should not do this in a deposition. If the opposing attorney wants additional information, or needs clarification about a particular answer, he or she will ask another question.

Do not let the examiner control the rhythm of the testimony by giving quick, rapid answers to rapid questions. Take your time to answer even the simple questions so you will remember to take time with the more complex questions.

Do not be lulled by a sequence of quick short questions, e.g., four in a row to which the answer is a simple yes and a fifth throwaway question at the end to which the answer is not a simple yes.
For example:

Question: You told Mr. Smith to write this letter?
Answer: Yes.

Question: And you told him what to say?
Answer: Yes.

Question: And he wrote the letter?
Answer: Yes.

Question: And he sent the letter?
Answer: Yes.

Question: And you had approved it?
Answer: (Be alert not to give an automatic "yes" answer).

Be polite, serious and professional. Very often, what you say is not as important as how you say it and your overall demeanor while testifying. Your appearance and demeanor will effect the other side's evaluation of your creditability as a witness, so you will want to make a very good impression. Conduct yourself in a mature and reasonable fashion. Try to relax, remain calm and be polite and respectful in your responses, answering "yes sir" or "no sir" and referring to opposing counsel as "Mr. Smith" or "Ms. Jones." Speak loudly and positively and with self-assurance. Dress appropriately. In almost every circumstance, women should wear a dress or suit; men a jacket and tie.

Do not get angry or frustrated. Ask to take a break if you become unable to keep your cool. Avoid Sarcasm and humor, as these responses may seem flippant when read out of context to a finder of fact.

When confronted with a document, read it carefully. Scrutinize it. When was it written? Have you seen it before? Did you discuss it with others? Analyze documents carefully before answering questions about them. If a document is important enough for the attorney to use in questioning you, you should give it the same importance and review it carefully before you answer. Do not assume that you know the document already. You can easily confuse it with some other document. For example, if you are asked to "look at" a letter, before answering questions about it, do just that and take all the time you need.

Look at:

  1. The letterhead, if any
  2. The date
  3. The person to whom it was sent
  4. The recipient's full address
  5. The name of the author of the letter
  6. Persons to whom copies are noted

Only after examining these parts of the letter should you read, carefully, the content of the letter. If you Follow these rules, you will indeed have "looked at" the letter and you will be prepared to tell the truth in answering questions about it. You cannot do this if you simply glance at the letter and ask for the question. If the document is lengthy, you are not required to review and absorb it instantly. You can request a recess from the deposition and take all the time you need or, if you can do so comfortably, you can simply and slowly review that document for as long as necessary while everyone waits. Do not be rushed.

Do not answer a compound question unless you are certain that you have all parts of it in your mind. If the question and entire answer are too complex to be held in your mind at one time, the question is too complex and ambiguous to answer. Ask the opposing lawyer to rephrase the question or break it down into parts.

Rarely can an accurate estimate be made of time, speed and distance in an event that occurs in a split second such as an auto collision. Be sure your estimates are reasonable, if you are able to estimate. If your estimate is a very rough estimate, say so. If you can't make an estimate, say so. Bad estimates can be used against you very effectively, so be very careful.

When testifying about conversations, make it clear you are paraphrasing, unless you in fact are quoting directly. For example, say "the gist of the conversation was . . . "

You may confer in private with counsel whenever you like. However, you should NOT testify about conversations with or information gained from your attorney.

Refer to documents or exhibits that will assist you in answering a question.

You control the pace of the deposition. You can have questions read back. You can spend as much time as you want thinking about an answer. You can take a break whenever you want. You can consult with your counsel whenever you want, except when a question is pending. If you feel that your concentration is slipping or you become tired, ask for an adjournment.

Never ask your lawyer during the deposition "Do I have to answer that question." If the question is objectionable (which is rare in deposition), your attorney will object without prompting.

Wait until the question is completed before answering. Do not begin to respond until the examining lawyer has completed the question and is silent. Even if you feel that you know what information the lawyer is requesting, you run the risk of misinterpretation by breaking into the middle of the question.

If at any time during the deposition you feel a previous answer was incorrect or incomplete, immediately inform your lawyer. Depending on the situation, your lawyer may stop the proceeding to give you an opportunity to correct the inaccuracy or omission. In the event that you recall an omission or inaccuracy after the deposition is completed, you still should bring this matter immediately to your lawyer's attention. A letter from your lawyer to the opposing counsel that sets forth the error or omission may spare you embarrassment or impeachment at the trial.

Be on guard during recesses. There is usually one (or more) recess during a deposition, and from time to time the lawyers involved will converse "off the record." You should always be extremely guarded in your discussion of the case; it is best not to discuss the case at all whether in the deposition conference room or the break room. Lawyers representing opposing parties have their first loyalty to their clients. When the court reporter is transcribing testimony once again, lawyers can question you about matters that were discussed "off the record."

Questions that are not comprehensible or understandable should not be answered. The tendency on the part of witnesses is to assume what opposing counsel meant and then answer the question, even sometimes with the appropriate clarification to make the question meaningful. Keep in mind that opposing counsel often use the deposition process to obtain an education about the case. Thus, if counsel asks a question that does not make sense, tell counsel that the question cannot be answered in its present form and ask counsel to restate the question.

Be careful about recognizing any authority or treatises as being authoritative during the deposition. This has legal significance you may not have yet addressed with your attorney. Any work an expert recognizes as authoritative may be read to the jury and admitted into evidence. Certainly you would want to carefully review any treatise for accuracy before declaring it authoritative.

If you don't know the answer to a question, say, "I don't know." Do not feel that just because a question is asked you are expected to know the answer to it. The law requires only that you testify according to your best memory. If you are uncertain about the answer to a question, indicate this uncertainty in your response. If you have no memory whatsoever on a given point, say so. Do not guess or speculate.

Do not be intimidated. Do not be intimidated by the opposing attorney. Some questions may seek information about your veracity and memory as a witness. These types of questions can be designed to make you feel uncomfortable; you may even start to doubt your own memory. Do not allow these questions to shake your confidence.

Beware of facts distant in time and of open-ended questions. Be very careful about facts distant in time and of open-ended questions or answers. For example, if you are asked about some event that occurred many years ago, and you do not remember the exact time and date, simply say so. Do not guess. Do not be embarrassed that you do not remember every fact that has occurred in your life. Nobody expects you to. If you remember a fact but do not remember exactly when it occurred, it is always good to say "To the best of my knowledge at this time, it occurred around that time," or some other equivalent answer. Be very careful of open-ended questions and answers, such as those involving words such as "never," "always" or "everything." Never be afraid to say, "to the best of my knowledge at this time . . ."

Do not give your opinion unless expressly asked to do so. You should never give your opinion or contention regarding any fact or issue unless the attorney expressly asks you for your opinion; just stick to answering the facts about which you are questioned. For example, if the attorney asks you "Did you go to see Dr. Jones?," the simple answer is "yes sir" or "no ma'am." Avoid answers such as, "yes, I went to see Dr. Jones, but after a few visits I began to think that he was not very competent, so I stopped going."

Insist on finishing your answer. Do not let the opposing attorney interrupt your full answer. You should politely insist on finishing your entire answer. If the opposing attorney interrupts your answer, simply state that you were not through with your answer and insist on being allowed to finish it.

Do not ramble. Again, when you have finished your answer, stop. Do not go on. Attorneys will often simply state "Okay, what happened next?" to illicit a rambling, disjointed response. Be succinct and short in your response, answering only the question that was asked.

Because the deposition is recorded and transcribed, it is important you speak loudly and clearly so that everyone can hear you. The court reporter is unable to record inaudible answers such as a nod of the head or "uh-huh".

Finally, if your attorney objects to a question and instructs you not to answer it, do not answer the question. Otherwise, you are still required to answer the question, even when there is an objection. When your attorney does object to a question, listen to the objection carefully, it may be helpful to you in answering the question.

You and your witness will be well served by repeated practice, using both routine and tough questions the witness can expect in the deposition. Include a review of any documents that must be produced before or at the deposition, particularly those that may present difficulties for the witness. Be ethical in your preparation. Do not suggest answers to your witness, although it is appropriate and professional to assist the witness in presenting honest information in a clear, concise and persuasive manner. Enlist colleagues to ask questions in a hostile manner to prepare the witness for such questions and to demonstrate how you will protect the witness from harassment or misleading questions.

At the deposition, your job is foremost to protect the witness from harassing and/or misleading questions and conduct. You must also raise objections to inappropriate questions in order to preserve the objection for trial. Review the objections allowed by the controlling jurisdiction. Consider whether questions you anticipate will raise special objections. If so, be prepared to provide thorough objections if allowed within the jurisdiction.

Be sure to polish your preparation efforts by following through with post-deposition obligations. If you have agreed to provide additional information that was not provided at the deposition, then work quickly to gather that information and provide it to opposing counsel. Following receipt of the deposition transcript, provide a copy to your witness in order that you may both review it for accuracy. If the corrections are not made and the deposition signed, generally within thirty days after receipt, then it will be deemed as a matter of law that the transcript correctly reflects all that was said at the deposition. Supplement the deposition responses as required by the procedural rules of the jurisdiction, but in any event, within thirty days of trial.


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About the Author

Ms. Benavides practices with Hermes Sargent Bates LLP in Dallas. Her practice focuses on business and commercial litigation. She is also a member of the American Bar Association Young Lawyers Division and has served as co-chair of the ABA Litigation Section Trade Secret and Unfair Competition subcommittees. Ms. Benavides is also active locally, serving as co-chair of the membership committee for the Dallas Association of Young Lawyers and co-chair of the Leadership Committee for the South Central Region of Lambda Legal Defense Fund.

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