Top 15 Tips for Giving a Good Deposition
What is a deposition?
A deposition is what lawyers call the official, recorded, a pre-trial session during which a witness, plaintiff, or defendant is required to answer questions under oath.
This session is a part of the “discovery” period, in which, as the name suggests, attorneys can examine the accounts of witnesses and opposing parties.
If you are a plaintiff or defendant, the person asking you questions — the examiner — will be the attorney of the opposing side. General witnesses may be questioned by both the prosecuting and defending attorneys.
These question-and-answer sessions can last anywhere from a few minutes to a few days, but most fall between the 1-and-a-half to 3-hour range.
Why do I have to give a deposition?
Attorneys order depositions for a couple of reasons:
- To “discover” what you know about the situation or event at hand
- Or to keep your testimony as evidence for later use in court
Regardless of the purpose, you will do well to assume the examiner is not necessarily working in your best interest. That’s why it’s essential for you to prepare!
How do I give a good deposition?
To help you through the deposition process, we’ve compiled all the best advice we have to offer:
1. Hire an attorney to defend your case — Odds are, if you are the plaintiff or defendant, you’re way ahead of us. But even if you are a witness, an attorney can help you prepare for your deposition, previewing probable topics and questions and offering advice that could save you from saying the wrong thing.
2. Be honest — Although you won’t physically be in the courtroom, your deposition under oath is just as important as official court testimony. And a false testimony will open you up to criminal perjury charges.
3. Only answer the question at hand — A deposition is NOT a time for you to have a friendly conversation with the examiner. Your questions should be as brief and concise as possible. You should only provide an explanation if absolutely necessary for clarity.
There are several circumstances that commonly pop up during depositions — here’s how you should respond:
- If you don’t understand the question, ask the examiner to rephrase and be more specific.
- If the examiner pauses after making a statement, don’t say a word. They didn’t provide you with a question.
- If the question includes a false fact or a statement you don’t know anything about, don’t answer the question.
- If the question miss-states a fact, (1) ask the examiner to rephrase or (2) correct the misstatement when you answer.
- If the examiner asks a compound question, ask them to restate it as two separate questions.
4. Answer only what you know to be ABSOLUTELY true — It’s your responsibility to tell the attorney only what you witnessed, whether you saw, heard, or acted in the situation yourself.
This means you should:
- Avoid drawing conclusions or disclosing opinions
- Avoid guessing or speculating about what actually happened
- Say “I do not recall” if you can’t remember the information you once knew
- Say “I do not know” if you were never aware of the information
- NEVER neglect to give your testimony if you actually know the answer
5. Pay attention to your attorney’s cues — Although you cannot consult with your lawyer before answering the examiner’s questions, your attorney should object to questions that violate your rights — say, if a question would require you to guess or speculate. If your lawyer brings up such an objection, you know your answer needs to be “I don’t know.”
6. If you remember the answer to an earlier question, speak up — Depositions can be stressful! There’s no shame if your memory falters in the heat of the moment. But, if you remember a detail that you couldn’t recall when you were questioned earlier, let the examiner know. If you remember it once you get home, you can still provide the information via legal counsel.
7. Listen for leading questions — The examining lawyer may phrase questions in a way to box you into a corner, convincing you to answer the way they want you to. Listen carefully to the wording of the examiner’s questions, always on guard for questions that may lead you into a trap.
8. Don’t let the examiner push you around — If nothing else, remember that YOU are in control of what you say in your deposition and when you say it.
That means, if the examiner tries to rush you through your response or interrupts you while you’re answering, you have the right to finish your response. Once the examiner has finished asking their question, politely say that you were interrupted and continue where you left off.
9. Avoid getting stuck on the details — When it comes to the precise details, like time, speed, or distance, avoid letting the examiner persuade you to give them a specific answer. If you aren’t ABSOLUTELY sure of your answer, you can provide a general estimate or range. Be very clear, though, when you are providing an estimate (as opposed to a definite answer).
10. Ask to view exhibits — In some cases, the examiner will ask you about particular documents related to the lawsuit. You have a right to view those documents before giving your answer.
11. Take your time — When you give your deposition, a Court Reporter will record it and write up a transcript of the questions and answers. This, of course, negates “uh-huhs” and inaudible responses.
However, it ALSO allows you to slow down to think about each question before you give a complete, accurate response. There’s no need to rush! The transcript won’t depict the time lapsed between questions and answers.
12. Avoid definitive words — If you say something “never” or “always” happens and the examiner comes to find out that’s not necessarily the case, the credibility of your testimony can be disregarded.
13. Remain calm & polite — Becoming combative, arguing, or raising your voice won’t do you any good. Neither will a defensive or apologetic attitude. When you approach your deposition with calm, polite answers, the examiner will be more likely to see your case as valid and credible.
Plus, if you’re struggling with some questions or find yourself becoming agitated, you can always request a break and consult briefly with your lawyer!
14. Assume the examiner is against you (even if you’re a witness) — It’s not your job to help the examiner find what they’re looking for. So, don’t overexplain your responses or try to convince them of your case. And never volunteer to offer up additional information later on after the deposition.
15. Remember, your discussions with your attorney are confidential — The examiner does not have a right to this information, and your lawyer should object if such a question is asked.
Ready to give your deposition? If not, give the Mulligan Attorneys team a call at 910-763-1100 or send us a message! Our attorneys would be happy to guide you through the process.