How to be an Expert Deponent
Giving testimony at a deposition is one of the most difficult jobs a litigant or witness will ever undertake. This guide should help you start the process of becoming an expert in giving deposition testimony.
Depositions - UsesA deposition is a pre-trial discovery tool used in civil litigation. A savvy lawyer will put it to good use, and may be able to use it to stop the case cold in its tracks with it. A deposition can be used to discover the facts of a case, but it can also be used to box in a witness or litigant, and can serve as the basis for a Motion for Summary Judgment - a motion which, if granted, may lead to the end of the case. Depositions are powerful tools, and being a good deponent is a very important job.
Deposition - The RulesThere are some "rules" in a deposition, but the first is the most important - Tell The Truth. Not only could a deponent go to jail for lying in a deposition, but being caught in a lie, or a mistruth, or misstatement, or whatever you want to call it, will essentially destroy the value of any testimony given. Even on little things. Lawyers use lies like sledgehammers, and one lie can take down an entire case. Don't do it - always tell the truth.
The second rule is listen to your lawyer, if you have one. Lawyers generally know the law, have a theory of the case, have a handle on ALL the facts, and have constructed a strategy based on that. Please, listen to your lawyer.
The third rule is that you must remember where you are, what you are doing and what is going on at all times. Many lawyers are very good at making you feel comfortable, getting you loose, and getting you to say things that will come back to haunt you or someone else later on. Stay alert. Listen to the question, and answer it.
Deposition - Implementing the Rules.So, how do the "rules" of a deposition play out? Telling the truth, as simple as it may sound, isn't always so cut and dried. "Telling the truth" in a deposition means sticking to those things that you personally observed, and nothing more, It's what you saw, heard, and felt. It's not what you thought, or what someone else thought. You may know something happened ("he dropped it"), but you may not have seen it ("the first thing I noticed was the brick falling on my head"). Don't state your assumptions, state only what you experienced. This is "the truth" for the purposes of a deposition. Common sense, your lawyer's argument, or testimony from another witness will work to help fill in any blanks - don't do it yourself.
And this fits in nicely with the rules on listening to your lawyer and letting him/her do their job. It's not your job to make the case, knit it all together, and persuade a judge or jury - it's your lawyer's.
And it also helps with the third "rule" - remember where you are and what you are doing. You are there to answer questions truthfully. If you stick to just the facts, you're fine. If you answer the questions directly - say "yes" if the answer is yes, and "no" if the answer is no, but say no more - you're fine. It's when you try to anticipate where the attorney is going and try to head him off that you will get in trouble - again, that's not your job. And this may be the hardest thing to do as a witness, and many attorney's are good at using this against you. Don't let the attorney make you feel bad giving a truthful answer to his question ("you're not actually saying that he let the brick slip from his hands, are you?"). In the courtroom, the tone of the question will never be heard (depositions are most often preserved in a written transcript), so don't let that throw you. Say "yes", even if it "sounds bad" to you.
But also make sure that what you are saying "yes" to is everything that you agree with - many attorneys will slip in multiple part questions or qualifiers that you may not agree with - be alert. If you don't agree, say so.
If you stick to the truth, stick to what you actually witnessed, and answer only the question asked, directly, you'll be one of the best deposition witnesses ever! It's harder than it sounds, but if you keep these rules in mind, you'll do better than 99% of the people called into a deposition.