A deposition can feel like a test. You can ace this test if you choose your words wisely. These guidelines will help.
A deposition is one of the key fact-finding phases of your case, permitting attorneys to explore facts and ask a wide variety of questions in a neutral setting. Third parties, such as family members or friends or an expert witness may be deposed. A court reporter will be present, but not a judge.
It’s important to be 100% truthful and to maintain your composure under oath, no matter how uncomfortable. The goal is to stay calm, keep your answers brief and never allow yourself to get angry.
What you say in your deposition can sabotage your case.
It’s unlikely that you know the difference between a good answer or a bad answer. You may think you do, but as you will see, the questions asked of you can be deliberately confusing.
A good attorney will always prepare with you in advance so you understand the process and what is expected of you. The time to discuss your concerns with him/her is prior to the deposition, not at the last minute. Remember that you do not have to share details of private discussions between you and your attorney.
Dress professionally. Dress as you would when going to work or church. Don’t wear flashy jewelry. Make sure to get a good night’s sleep. Don’t use alcohol or medication that could impact your testimony. You’ll need your wits about you during your deposition.
Pause.
Be calm. Stay calm.
Listen carefully.
Don’t get angry.
Speak slowly and deliberately.
Keep your answers short.
1. Be 100% honest. Lying will always come back and bite you in the butt in your deposition or in a trial.
2. Don’t be intimidated. It is important that you maintain your composure at all times when you are bring deposed. Be prepared to sit in the hot seat temporarily. Don’t allow yourself to get angry. Be strong and confident.
• Listen carefully to each question.
3. The four best answers to any question:
a. Yes
b. No
c. I don’t know
d. I don’t remember
4. If you don’t know the answer to a question, say “I don’t know”
5. If you don’t remember the answer, say: “I don’t remember”
• Use this answer sparingly. “I don’t remember” can sound evasive, especially if you remember other similar facts.
6. Don’t confuse “I don’t know” with “I don’t remember”
• “I don’t know” means you never knew the answer.
• “I don’t remember” means you may have known the answer but you’re not sure.
• If you answer “I don’t remember” you can always come back later and say that you now remember the answer to a question because you found the answer (in a document, diary, or calendar, etc).
• If you say you don’t know something and then suddenly remember, it can be construed that you lied the first time.
7. Look the opposing attorney in the eye when speaking.
8. Pause before answering each question.
• We need your pause to state possible objections. Think about your answer before speaking.
9. If your attorney objects to a question, listen for instructions before going any further. Stop talking and listen closely to the objection.
10. If your attorney instructs you not to answer a question, don’t answer.
Important: Do not look to your own attorney for help answering a question.
11. Make sure you fully understand each question before answering. Ask to have the question repeated, rephrased or clarified, if needed.
• Answer only the question that is asked. Give a verbal “yes” or “no.” Period. If I ask you what time it is, do not tell me how to build a clock.
• Make sure to finish your answer. If the attorney tries to cut you off, demand to continue answering the question.
12. Give the shortest, most truthful answer possible to each question, then stop talking. Do not ramble or go off on tangents or attempt to explain yourself further.
Know when to stop talking.
13. Don’t exaggerate or overstate your answers. Keep your answers short and to the point.
• Don’t be evasive. It makes you sound less persuasive. Don’t hem and haw or think out loud.
14. Don’t feel obligated to fill any silence with talking.
• Attorneys will often create silence to try to make you uncomfortable or intimidated. Again, know when to stop talking.
No storytelling.
• Storytelling is going on and on about a subject, divulging information you do not want the opposition to have.
Don’t do any thinking out loud.
• Pause, consider and formulate your response before answering each question.
Watch out for tricky phrasing or hypothetical questions.
15. Don’t be a mind-reader or answer hypothetical questions.
• A hypothetical question asks you to guess at something.
• You can’t possibly know what someone else thinks or feels.
If asked about what someone else thinks or feels, say that you can’t answer the question.
• Never guess or speculate when answering. You can always say this: “I don’t know” or “I don’t remember.”
• Don’t let yourself be bullied into a “yes” or “no” answer if it isn’t true.
You can say this:
“I can’t give a yes or no answer to this question and I will need to explain.”
16. Don’t agree to assumptions.
• Be careful with questions that make assumptions of facts that are not true. If the opposing attorney makes a statement that includes ‘assumed facts’ that are incorrect, speak up and tell them that the statement is not true.
• If asked to make assumptions, make it clear that a hypothetical statement is the lawyer’s assumption—not yours. You can ask for a rephrasing of the question.
• If an attorney says: “I’d like you to assume with me that ... ”
• You can say: “That is your assumption sir, not mine.”
17. Make sure all your answers are based on your own personal knowledge, not speculation, assumptions or guesses.
18. Don’t let the attorney limit your choices. Don’t let them lead you along or give you false choice questions. You are being tricked.
Question: “Sir, was it A or was it B?”
Answer: If the correct answer is neither A or B.
Tell the attorney it was “C.”
19. Look out for the ‘Is that all?’ question. If you say yes, you may be limiting yourself in the event that you remember something later on. The best way to answer is:
Question: “Is that all?”
Answer: “That is all I can remember right now.”
20. Never volunteer information. Do not elaborate.
Example: If you have a red pen behind your back and the question is:
“Do you have a blue pen behind your back?”
The answer is No.
Do not say:
“No, I have a red pen behind my back.”
21. Beware of the attorney using the absolutes like ‘always’ and ‘never.’
“Have you always done this?” or “Have you never done this?”
22. If a question can’t be answered with a simple ‘yes’ or ‘no’ answer, say you can’t answer and that you will need to explain.
• Some attorneys will try to force you to say ‘yes’ or ‘no’ with tricky phrasing like:
“Isn’t it true that .. yes or no?”
• Pause to think before answering questions with this kind of phrasing. It is meant to confuse you.
• Keep your answers short, concise and truthful.
• Stay focused. Pay close attention.
Ask to take a break.
If you are losing your focus, feeling nervous, confused or flustered by a line of questioning, ask to take a break.
Never apologize.
or give an excuse if you don’t remember something. Excuses can be used against you in later questioning. It’s okay to say “I don’t know” or “I don’t remember.”
Excuses or lack of recall can be used against you in later questioning.
23. Don’t let the attorney put words in your mouth by improperly summarizing your testimony. You are being manipulated.
• Watch for tricky wording or leading questions such as:
“Isn’t it true that ... ?” or “Don’t you agree that ... ?”
• This kind of phrasing is confusing and ends up being more of a statement by the opposing attorney, not you.
• Another example of a trick question: “How much money did you spend on your girlfriend while cheating on your wife?”
24. Don’t feel obligated to fill any silence by talking.
• Attorneys will often create silence to try to make you uncomfortable or intimidated. Don’t take the bait!
25. If a statement made by opposing counsel is not 100% true, then don’t agree.
Say No or I don’t agree.
• You do not have to agree. If it’s not true, don’t agree.
• Keep the attorney honest. Don’t let them lead you along or give you false choice questions.
26. Do not try to rephrase or fix the lawyer’s question, like:
“What I think you meant to ask me was ... ”
27. Read fully any and all documents that are handed to you in the deposition before answering any questions regarding that document.
• Don’t bring any documents to the deposition unless you are instructed to do so by your attorney.
Watch out for this tactic:
• When the opposing attorney acts like he or she is your friend, be assured he is NOT your friend and “we are not all friends here.”
28. Don’t interrupt the opposing attorney.
29. If the attorney interrupts you before you finish answering, politely tell them that you have not finished and would like to continue.
30. Don’t argue with the opposing attorney.
• If you start feeling angry, stop talking or ask to take a break.
31. Don’t worry about what someone else may think of your answers. Just answer truthfully and succinctly.
32. Correct any mistakes you can at your deposition, not later. You may not have a chance to do it later.
33. Don’t make comments—either good or bad—regarding the questions asked of you.
• Keep the attorney honest. Don’t let them lead you along or give you “false choice questions”.
34. Make note of any concerns or questions that come up during your testimony so you can remember to ask your attorney during the next break.
35. Stay alert but remain calm. Don’t let the other attorney bully you. Don’t take the bait! Speak slowly and calmly, maintaining your composure throughout your testimony. Ask to take a break to compose yourself.
36. Humbly tell the truth even if it might seem hurtful to your case. Admit the obvious, don’t dance around it.
37. Remember that the walls have ears. Speak about your case only with your attorney.
38. Nothing is off the record. An opposing attorney might try and chat with you during a break. Remember that these conversations are always on the record.
39. Don’t offer or agree to doing anything after the deposition ends.
40. Be serious. No joking around.
Don’t let your guard down.
Don’t be intimidated.
Always be 100% prepared and calm.
Be 100% Honest.
Be confident and strong in your answers.
Never get angry or combative.
Pause to think before answering each question.
Listen carefully.
Make sure you understand each question.
Keep your answers brief.
Answer only the question that is asked.
Know when to stop talking.
Watch out for tricky questions and phrasing.
Never volunteer information.
Don’t let your guard down.
