Basic Rules for Giving a Deposition Lasher Holzapfel Sperry & Ebberson (Client Service Document) The following is a list of basic rules for giving a deposition. Please review it carefully and call me with any questions you may have. 1. Listen to the question. Concentrate on every word. Wait until you hear the last word of the question before you start your answer. If you listen closely to ordinary conversation, you will see that we cut one another off quite frequently, not to be rude but to keep the conversation moving. Listening is hard work. If you listen as you should, you will be tired at the end of the day. 2. Be sure you hear the question. If the lawyer drops his voice or someone coughs and you miss a word or two, say that you did not hear the question. Do this even if you are almost certain that you know what word you missed. 3. Be sure you understand the question. Sometimes the question will be so long or so convoluted that you do not know what you are being asked except that it concerns subject A. You may be tempted to answer by saying something about subject A in the hope that the lawyer will then go on to some other subject. Do not do that. Just say that you do not understand. You may not understand because the lawyer is not exact in his language. For example, he may ask you if a certain letter was sent after “that.” You may not be sure to what fact or event he is referring when he says “that.” Say that you do not understand the question. You may not be certain of the meaning of a word used by the lawyer. Or you may not be sure how he is using it. Say that you do not understand the question. If you do not understand, do not help the other lawyer in asking the question. Do not say, “If you mean this, then my answer would be such and such; if you mean that, my answer would be so and so.” You may very well give the other lawyer ideas that he never had himself. Say only that you do not understand. 4. Answer the question. After you have listened to, heard, and understood the question, then answer; answer the question. Some lawyers say that if you are asked your name, you should give your name but not your address. Others say that 95 percent of the questions can be answered, “Yes,” “No,” “I don’t know,” or “I don’t remember.” Those statements go too far but they make the point. Generally you should keep your answer short and to the point. What you learned in taking tests in high school or college applies here. Answer what you are asked. If the question begins “Who,” your answer should be a name; if “Where,” a place; if “When,” a date; and so on. If you do not know or do not remember, say that. You do not get extra points by guessing. If you are pretty sure of the answer but not 100 percent certain, say that. If you do not know or remember, say that and then keep quiet. Do not volunteer a reference to a document, such as, “I don’t know; I would have to check my desk calendar.” You do not get extra points for giving perfectly clear and complete answers. Normally if there is some ambiguity in your answer, that will be a problem for the opposing party, not for you. Sometimes, after you give your answer there will be a silence. The other lawyer may be thinking how to word his next question. Silences sometimes make a witness uncomfortable. You may be tempted to fill the silence with words. Do not do that. Keep quiet and wait. If a question irritates you or makes you angry, resist the temptation to argue with the other lawyer. If you get into an argument with a lawyer, you will lose. Just give whatever facts you know are responsive to the question and then keep quiet. If you are asked a question that requires a longer answer, give it. Use your common sense. Do not make the other lawyer play “Twenty Questions.” Remember that every word is another target for the other lawyer. In dealing with the other lawyer, your manner should be courteous and open, but mentally you should be on guard at all times. Even if something is said “off the record,” the other lawyer can ask you about it when you are back on the record. I may object to certain questions. Try not to be distracted by that. Listen to the objection. It may point out some hidden trap in the question. The objection is a reminder to you to keep concentrating. I may go further and instruct you not to answer the question. If I do, follow my instruction. I may get into trouble with the court if I am wrong, but you will not. 5. Stick to truthful answers. You may hear the same question more than once. If your original answer was accurate, stick to it. The fact that the other lawyer keeps coming back to the question does not mean that you are not answering properly. You must give the facts as you know them. If you gave them right the first time, stick to your answer. Of course, the other lawyer is an experienced and skillful questioner, and through his questions he may try to create doubt in your mind even about facts that you know very well. Take an easy example which has nothing to do with this case. Suppose he shows you a coffee cup and asks you what it is. You say a coffee cup. He then pauses, gazes at the cup, and lets you squirm. Then, after letting you wonder what he knows that you don’t, he leans forward and says, “Now, Mr. Witness, is it your testimony here today—under oath—that that object is a coffee cup? Do you really mean to say that?” There is a natural tendency to back off and say, “Well, I thought it was a coffee cup.” That small change in your testimony may be crucial. Suppose a witness says the first time that he had the green light and then says that he thought he had it. That would be a devastating change. So if your first answer was true, stick to it and say, “Yes, it is a coffee cup.” What does the other lawyer do then? He will go on to another subject quickly when he sees that you cannot be shaken. Of course, if you realize that your earlier answer was in error or incomplete, you should correct or supplement it. Obviously, you should not say that an earlier answer is true if you become aware that it is not. 6. Tell the truth. You must always follow that rule. You should not interpret anything else that I have said to you to be at odds with that rule. You will undoubtedly be asked some questions that we have not covered. When that occurs, do not get upset. Focus on the question and, if you can, answer it. You may be asked if we met to prepare for the deposition. Tell the truth. Contact | Legal Disclaimer