Deposition Tips for use in Connecticut and any other place
How to honestly and effectively testify in deposition.
What's a deposition . . .?Depositions or examinations before trial are a fundamental part of civil litigation. If you are a plaintiff or a defendant (or a witness) in any matter involving a significant amount of money or emotion you should expect to be deposed at some point in the litigation process.
So, what is a deposition? Simply put, it is an opportunity for the opposing party, usually through his or her attorney to question you under oath and before trial. The purposes of a deposition may vary, but usually it is to obtain testimonial evidence that can be used during the trial process. A questioning attorney may want to lock in your testimony about a certain set of facts or may be seeking to have you confirm information in your possession. What ever the purpose, you have an obligation to be truthful in answering questions, but also to be prepared so that you can make the best presentation possible.
... and why should I care?From the witness' perspective, a deposition can be a very daunting event. I have been deposed about half a dozen times in connection with a variety of matters - attorneys are not immune from receiving subpoenas to testify - and I distinctly remember the first time I was questioned. The only thing I really recall is being so nervous that my shirt was soaked. Nothing about the preparation was memorable: about 20 minutes worth, an hour or so before I was questioned. After taking a few depositions, I realized that I was not prepared very well.
Preparation for a deposition starts with the client or witness being aware of what he or she knows, and how that knowledge fits into the bigger picture of the case. It is only through an awareness of context can a witness see how his or her testimony can shape the case. The attorney needs to explain the theory of the case, detail the critical facts and then elicit the story from the witness or client. While this may seem elementary, I have seen many occasions where there is a disconnect between what the attorney thinks about the case and what the witness or client knows of the facts. Additionally, some clients tell their attorney what they think the attorney wants or needs to hear. Stories need to be probed. Memorializing a bad story in a deposition or worse yet, the wrong story, will be disastrous.
As with any testimony, be it in court or in deposition, the witness must tell the truth and it is the obligation of his or her attorney to make sure that truthful testimony is presented. Difficult facts can be explained or qualified by any good attorney. Lies or fabrications, however, will eventually be found out, also with disastrous consequences. Remember, lies have short legs.
How should I answer a question? How should I not answer a question?Short answer: As briefly as possible. The only obligation that a witness has is to answer the asked question truthfully. The witness does not have an obligation to guess, speculate, or provide any response beyond that which is asked.
Questions that include phrases such as "can you", "did you", "have you", "are you", "were you" only require "yes" or "no" answers. These are examples of closed-end questions. They are typically followed up with open-ended questions.
Open-ended questions usually include words such as "what", "why", or "how*. These questions require an answer beyond a simply yes or no. Here, the attorney is trying to get into the meat of the matter and determine what you know and how you happen to know it. I instruct my clients to *engage brain before opening mouth* when they hear questions that include words such as these.
'Engaging the brain' starts with making sure the witness understands the question - you cannot answer what you do not understand, and attorneys sometimes ask bad questions. If you do not understand the question speak up and say so - "I am sorry I do not understand your question."
Sometimes questions are too long "beyond 8 to 10 words" and the witness cannot remember what was being asked. Again, you cannot answer that which you cannot remember. Ask for the question to be repeated. You'll be surprised the number of times that even the attorney cannot remember the question that was asked - he'll ask the court reporter to repeat it!
You've engaged your brain, now what are you supposed to do? Answer only the question that was asked and nothing more. Remember - you are under no obligation to volunteer any information that was not asked. For example, if you are being asked about what you saw right before the car ran through the traffic light and collided with the other car, you do not need to say *I was standing next to so and so, holding an umbrella, and then I saw ...." Answer the question succinctly and do not think out loud.
Can good deposition testimony really impact a case?Years ago I was representing a client in a deposition and he took my 'brain engaging' advice to heart. He needed to. He had worked on Wall Street and was being asked to testify about sexual harassment that had occurred at his former place of employment. He also had a dilemma. He was aware of certain inappropriate behavior which if exposed would have resulted in the bank being found liable. He also knew that if he testified as such his career would be over.
I insisted and he knew that he was obligated to testify truthfully regardless of the potential impact. But he also understood that he was only obligated to truthfully answer the questions that were asked. He was under no obligation to volunteer information. My client answered all of the questions that were asked, truthfully. Critically, the questioning attorney limited her questions to whether my client had observed any interactions with her client. She failed to ask any questions regarding the culture of the bank when it came to inappropriate behavior, an area that would have resulted in a waterfall of information. Had the right questions been asked, my client would have answered, and the bank would have needed to hire a high priced public relations firm after writing a large check to the plaintiff.
Isn't reading this unethical or illegal?Litigation is an adversarial process and each side is afforded an opportunity to dig for evidence, and depositions are one such tool. While the scope of a deposition is limited by a few court imposed rules, the only real limitation is the questioning attorney's preparation and imagination. Conversely, if I have counseled my client to listen carefully to each question and only answer that which was asked, is that somehow unfair? Certainly not - that is what I have been retained to do and I would be remiss if my client was not adequately prepared for his or her deposition.