How to Handle Your Testimony During
A deposition is part of what is known as the "discovery"
process. The purpose of a deposition is so the other side can learn what
the deposed party will be saying if the matter goes to court.
Depositions are under oath and generally take place in an
attorney's office. A court reporter is present and everything that is said
Those people that are allowed in the room during the taking
of a deposition are as follows: all attorneys involved in the case, the
court reporter, the party giving the deposition and, most often, the other
party(ies) to the litigation.
The other attorney generally asks questions about the things
that he or she believes will be brought up at trial, thereby obtaining a
preview of what will be said and what kind of a witness you are. What is
said at a discovery deposition, can not be admitted into evidence, but you
are bound by the words you stated at the time of the deposition.
Inconsistencies between deposition testimony and courtroom testimony can
weaken your credibility.
Testimony during depositions and testimony during trial is
very similar, but there are slight differences that you will need to learn
about. Here are some tips for testifying during depositions:
· Listen fully to the question.
· Think before you speak. Don't rush into answers.
Don't start answering the question before you have heard it in entirety
and understand it. Unlike during trial, in a deposition, thinking time is
without penalty or prejudice. Feel free to use it.
· Make opposing counsel define words if something could
be ambiguous. Example: opposing counsel was asking leading questions
designed to try to paint a mother as a promiscuous slut who paraded men in
front of the kids night and day. If you knew the mom, you would know how
utterly laughable this is. So, she started the questioning by asking if
the mom had "dated" anyone. The mom kept her going at length defining what
the terms "date", "relationship", "intimate", "boyfriend", etc. meant. She
finally gave up in frustration, and the mom's attorney got a good laugh
out of it. She got nowhere. Don't assume you know what they mean. Make
them explain it.
· Don't "help" them. If they are at a loss for words,
don't offer any. Let the uncomfortable silences sit there.
· Don't give them any more information than they ask
for. If you can answer "yes" or "no", then do that. Give them nothing
· If you need to ask your attorney a question, ask to go
off record and consult him/her. You have that right.
· Don't guess. If you can't answer the question, or
don't know the answer to a question, say so. If you answer is an estimate
or only an approximation, say so. If you think you might have the answer
in the future, say, "I don't recall at this time".
· Make use of the statements, "Can you re-phrase
that?" "I don't understand your question." "Can you re-state that?" "Can
you break that question down into smaller segments?" You will not be
penalized for these strategies, and in fact, it is far worse to answer a
question incorrectly because you did not understand it.
· Don't let your fear of looking stupid push you into
making up answers.
· It's OK not to remember. If you don't remember
something, say, "I don't remember." Or "I don't recall at this time". This
is very important. If you are asked about doing something, and you don't
specifically remember what you did, say so.
· It's generally ok to talk to people about your
case. If you are asked who you discussed the case with, be honest and
tell the court who you talked to. On the other hand, discussions with an
attorney are privileged and confidential, and while you can say you talked
to an attorney, you should not reveal what was said by you and by the
attorney. If you have discussed the case with your children, be aware that
many judges and evaluators frown on this. They like to see parents keeping
the children out of the legal matters as much as possible.
· State what you personally saw or heard. If you are
asked if you "know" something, this usually means you are being asked
whether you personally saw or you personally heard something. If your
answer is based solely on what someone else told you, say so. In everyday
life people feel they "know" things that others have told them, but in the
court environment, this is not what is meant by "know."
· Be careful of questions with "all" or "none " in
them. If a question has the word "all" or "none," in it, you should to
understand that this does not mean "almost all" or "hardly any." "All"
means absolutely every single one with no exceptions, and "none" means not
even one single one. When asked, "Is that all?" you may want to say, "That
is all that I can think of right now." Don't say, "That's all he said," or
"Nothing else occurred." You may well remember other examples later.
· Don't second-guess opposing counsel's motives. In
other words, don't try to guess why you are being asked each question.
Just focus on giving truthful answers. This is the best way to respond to
tricky questions -- with truth.
· Do not discuss the case at all in the hallways,
restrooms, or elevators. That nice lady near you may be your spouse's
· Watch your body language. Don't put your hand over
your mouth while you testify. It is best to keep your hands folded in your
lap or on top of the table. Don't make faces.
· Do not chew gum.
· Don't memorize your testimony.
· Do not argue with the other party. Address your
remarks to attorney taking the deposition, not to your spouse.
· If you need a break, ask for one. You may feel like
a prisoner at an inquisition, but you are not.
· Be aware of your rights. There are generally
statutory time limits on the length of time a witness can be deposed.
· Do not "make arguments" Remember your opponent's
objective. Opposing counsel wants to watch you testify and observe your
demeanor, your passion, your best arguments. You likely will be tempted to
lay into them. If you give into that, you have given them the ability to
undermine your claims at trial. Your cannot win your case in a deposition,
but you may lose it if you are not careful.
· Don't be intimidated by opposing counsel. They are
just people that put their pants on one leg at a time like you. Be
confident in your good mothering and project that confidence.
· If opposing counsel tries to push you or coerce an
answer, hold firm. Simply restate your answer politely.
· Don't be led. Opposing counsel will try to subtly
direct you toward points they want to establish. It is to some extent
human nature to seek to agree, even more so for women. He may in fact
assume the demeanor of a friend. The bottom line is that the opposing
attorney is your arch enemy. When he makes a statement or asks a question
that assumes something untrue, state a correction. Politely but firmly
make sure your point is made. You should also interrupt opposing counsel
if you need to correct a misimpression or misstatement.
· Maintain a professional demeanor at all times. The
other attorney may attempt to anger you, to rattle your cage. He may be
rude or sarcastic. However he treats you, you do not allow your anger to
· Answer the questions as accurately as you can. This
means being truthful. But beyond that, it means not exaggerating your
case. Be careful about powerful claims you cannot back up. This hurts your
credibility on the claims you can backup. Don't bring your records or
notes to the deposition unless your attorney specifically tells you to
bring them. When you refer to records during a deposition, the other
attorney has a right to see them.
· Do not rush to answer. It is important to pause a
few seconds after every question to allow your attorney time to insert an
objection, if needed.
THESE TIPS ARE NOT TO BE CONSTRUED AS LEGAL ADVICE. WE
ARE NOT ATTORNEYS, AND IT IS STRONGLY RECOMMEND THAT YOU CONSULT A
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