The deposition is an important part of the discovery process in a lawsuit. Essentially, a deposition is the taking of sworn testimony before trial. Depositions are not limited solely to the parties named in a suit and may be required for any potential witness. Attorneys may take a deposition to see what a witness knows, to preserve the testimony of a witness, or to potentially point out inconsistencies in a witness’s testimony. Additionally, if a witness will be unavailable at trial, a deposition may be read into the record as that witness’s official testimony.
How to prepare
Any successful deposition requires preparation and a fundamental understanding of the themes surrounding a case. The caveat to being prepared is to let your attorney do the preparation and (s)he should advise you on what preparation is necessary on your end. When strategizing with your attorney, they should advise you on the affirmative points they intend to underscore in your deposition, whether that’s through direct or cross examination; these points can be treated as anchor points. Maintaining your anchor points will not only keep you focused on the questions in front of you, but they will also serve the points that your attorney intends to address.
Listen to your attorney
Opposing counsel may try to guide you down roads you’re not entirely familiar with or are difficult to recall; it’s important to give short, concise answers when addressing the questions at hand. Always answer truthfully, it’s acceptable to say “I don’t know” or ask for further clarification when you’re unsure of a question. Keeping your answers short, sweet, and to the point enables a quick and efficient deposition with minimal harm to your case. Even giving speculations can be detrimental during trial, if your assumption or guess is proven to be incorrect, opposing counsel may use this to show a lack of veracity in your testimony. A witness’s credibility is paramount to the jury and judge’s perspective on your reliability as a witness.
Keep your answers short
The fashion in which attorneys question witnesses varies depending on each attorney’s style; however, a common tactic is to play off the silence after a witness answers the question. Many attorneys will wait after you answer your question, because socially, people are uncomfortable with prolonged silences. Often, people will begin offering further information in that time to fill the void; do not do this. When opposing counsel asks a question the witness should simply respond with “yes” or “no” answers without answering the underlying question, even if it’s obvious to come next. For example, if a witness is asked “Do you know what time it is” that witness should reply with a simple “yes” or “no”, rather than giving the time.
Don't get rattled
Always make a strong effort to conduct yourself in a professional manner, including when asked emotionally provoking questions. Lawsuits can be highly emotional, and it’s okay to be emotionally invested; however, a witness should make a conscious effort to not lose their temper while answering. An emotional witness may make the mistake of offering too much information or harming their credibility. If asked difficult questions, the witness should take a moment to collect their thoughts and then answer accordingly. The attorney conducting the deposition will be watching your body language, and tailor his/her questions around the ones which make you uncomfortable. Furthermore, (s)he will remember which questions were difficult for you and attempt to exploit that at trial for the jury and/or judge to see.
Stop talking when your attorney objects
Attorneys will question witnesses on a wide variety of subject matters, and they are permitted to so long as the question holds some probative value. Although attorneys have broad discretion in which questions they choose to ask witnesses, the opposing counsel will make objections in most depositions. When your attorney objects to the question at hand you should wait until they state the grounds for the objection and wait to see if your attorney instructs you to remain silent on that question. Depositions are conducted outside the presence of a judge, so unless you’re instructed not to answer a question, you must answer it. The reason attorney’s object in depositions even though witnesses may answer afterwards, is so the record reflects the objection for the judge to rule on at a later date. If the judge sustains the objection, then the witness’s answer will be omitted in trial.
In sum, always be honest in your answers, and follow the instruction of your attorney to ensure a successful deposition. If you have a legal issue you need help with, the attorneys at Whitcomb, Selinsky Law PC would love to share their expertise with you. Please call (303) 543-1958.