In last month’s column I discussed the preparation process leading up to your deposition; in this month’s article, I discuss how a witness should conduct himself at the deposition. Remember, depositions can, and do, win or lose cases.
Your adversary’s attorney is a professional who is trained to extract information from you that is both pertinent and helpful to his or her client’s case. That attorney will attempt to lull you into a sense of comfort and complacency. He or she may even try to appear like a friend to relax you into speaking more freely. The goal of the adversary’s attorney is to give you the impression that your testimony is of minor importance and, thus, you can and should say anything without any concern of the consequences. This is a common litigation technique. If this tactic fails, the attorney may try to fluster you. Recognize this as another tactic and take comfort in knowing that you are winning the battle.
Generally, your testimony will be taken under oath and recorded by a certified court reporter; however, videotaped depositions are becoming more common. Allow your adversary’s attorney to complete his question before responding. A good device is to wait three seconds (or three beats) before answering. Unless it is extraordinarily long, pauses between the question and answer have no effect and will not make it into the record being transcribed. By comparison, at trial and, to a lesser extent, during a videotaped deposition, long pauses are apt to provoke a jury’s curiosity.
In addition to ensuring that the question has been asked in its entirety, taking a pause before giving your answer also has the benefit of permitting your attorney to make an objection to the question and, in some instances, instruct you not to answer the question. While it is improper to talk to your attorney while a question remains unanswered, occasions may occur where you attempt to speak to your attorney before responding (depending upon the circumstances, your adversary’s attorney may object and, at a minimum, these types of breaks in the proceedings draw attention to you and the topic of questioning).
Four commonly acceptable answers are: (1) ‘Yes’, (2) ‘No’, (3) ‘I don’t recall’, and (4) ‘I don’t know’. While it is expected that you are knowledgeable and capable to answer questions, it is not expected that you be a know-it-all. DO NOT LIE. The worst truths are better than the best lies. If you are ultimately caught in a lie, your entire credibility as a witness and/or party is lost. Your adversary will argue that you cannot be trusted. It is simply not worth it. Tell the truth. Many times, the truth, as much damage as it may seemingly cause, can be explained. In fact, one of the hallmarks of competent counsel is the skill in minimizing the harsh impact of negative information. A lie can never be justified. Truth breeds respect from the judge and jury; by comparison, lies breed contempt and distrust.
Oftentimes, questions are poorly phrased, ambiguous or compound. LISTEN CAREFULLY TO EACH WORD. I routinely use the following simple example with my witnesses prior to the deposition: Q: Do you have the time? The possible answers are: (1) Yes; (2) No; or (3) it’s 2:30 p.m. (or whatever the actual time may be); however, the correct answer is 1 or 2. In this example you were simply asked if you had the time, as opposed to what time it actually is; therefore the appropriate response is either ‘Yes’ or ‘No’. Accordingly, if you need clarification as to what is being asked, ask the attorney to rephrase the question. If you do not understand the question, just say so. Remember, it is your adversary’s job to present proper questions that are simply phrased.
Your job is to give out as little information as possible. When you are asked a question that is capable of being responded to by a simple ‘yes’ or ‘no’, you should provide a yes or no answer. Do not supplement your answer with additional information no matter how helpful you believe this information is to your case. Lawyers are taught to watch for excessive answers, because invariably, you will have opened the door to information that your adversary previously had no idea about. Remember, they need you to fill in the blanks in their case, and they need your testimony to do so.
