 |
Depositions
A deposition is when one party’s attorney interrogates the opposing party in an informal office setting, under oath, before a court reporter. The testimony is typed up into a transcript which the witness reviews and signs. This written testimony can be used to impeach the accuracy of the testimony you give in court, if it conflicts with the deposition testimony.
TACTICAL CONSIDERATION IN A DEPOSITION:
- In typical conversation, we respond to each other’s visual cues: raised eyebrows, a head tilted to the side, asking us to elaborate or justify our answer, and help the questioner out. A deposition, however, is no typical conversation. When you are done with your answer, stop talking, and disregard these visual cues that the opposing counsel may use to try to get you to volunteer more information.
- Similarly, although it would not be acceptable in normal social conversation, silence is perfectly acceptable in a deposition. If you are uncomfortable with this, try taking a drink of water after giving your answer.
- Do not allow the questioning attorney to rephrase your answers. Even if the paraphrase sounds more or less accurate, more or less is not enough. You can either correct the paraphrase, or can simply state that your previous answer stands.
- We recommend that you pause after the question and before you give your answer to make sure that you have the question well in mind as well as your answer before you begin talking.
- The questioning attorney may try to make you feel angry and defensive. It is important that you not rise to this bait. Similarly, the questioning attorney may try to make you feel that what your attorney says, and the objections your attorney makes, are irrelevant. This is a tactic to confuse you. Listen to your attorney and either answer or not, according to his directions.
- Answer only the questions asked; do not add or volunteer information. Think of it like a piano; opposing counsel must push the right key in order to get a particular note. For example, if the question is “During your first meeting with X, did you discuss topic Y?” The answer should be “No”, not “No, but we did talk about it later at a later meeting.” This approach will seem plodding, but is important in avoiding volunteering. It also will keep the time of the deposition down, since every time you volunteer information the other attorney will be compelled to follow up with the new information.
- You should not try to clarify opposing counsel’s confusion, or to fill in what that attorney has missed. It is the other attorney’s job to ask good and clear questions, not our job to help them out. In addition, you should be sure that you understand the question before answering it.
- It is absolutely crucial that you never say “not specifically.” If asked, “Did you discuss X?” the answer should be either “yes” or “no”. If the answer is “not specifically,” the next question is bound to be “How about generally?” and there will be more follow-up questions.
- Your answer should be based only on your knowledge, and not based on speculation. If you hear yourself saying, “Well, I must have…” it is time to stop. You are speculating. You should not guess or assume anything.
- When you are shown a document marked as an exhibit, you should read it carefully first before answering any questions about it.
- Your attorney will be making objections to help you spot trick and problem questions. It may sound like she is speaking only to opposing counsel, but really she is also speaking to you, perhaps pointing out the problems in the questions. After your attorney’s objection, you may answer, unless he has also instructed you not to answer.
- You can control the pace of the deposition. You should think before every answer. (If you are particularly chatty, consider inhaling and exhaling slowly before each answer, to allow time to limit and compose the answer). If you have any questions, you can always take a break and I will talk to you. You can go to the bathroom or get some coffee any time you want, this is your show.) It is important that you go a pace that makes sense for you. Not the pace set, generally as a tactic, by the other attorney).
- You should not interact casually with the other side or the other attorney. Even if it seems harmless, questions and comments made in the bathroom on a break can easily turn up as the next question on the record. Keep in mind, too, that many attorneys work with the same court reporters all the time, so any discussion between us should take place in the hall, or when the court report is not there.
- Most importantly, you should tell the truth. You know the facts, and no fact in this case is as bad as perjury would be. If you follow all of these rules of the good witness, and the other side asks exactly the question you are afraid of, you must answer it truthfully.
|
|
