The following provides a preview and offers suggestions to persons preparing to testify in a discovery deposition:
Your answers will be under oath and recorded by a court reporter word-for-word.Your answers may be used to impeach you at trial. Attorneys are looking for you to make inconsistent, incorrect or damaging statements. They want to size you up as a witness and test your credibility.
The attorneys will probe you for inconsistencies, credibility issues and areas of vulnerability (carelessness, ability to be baited or lead, etc.).
Listen carefully to each question. Take a moment to reflect. Ask if you do not understand. Anything you say will be on the record.
Do not say "uh uh" or nod. Answer verbally.
LIMIT YOUR ANSWERS TO THE QUESTIONS ASKED. Never volunteer information beyond the scope of the question, giving leads to follow-up questions.
Your answers should always be consistent with your prior disclosures and should flow naturally, not sounding mechanical or rehearsed.
You may review or restate questions to ensure clarity. Do not answer until you understand a question and the terms used by the attorneys. You may ask that questions be repeated, restated,
or unclear meanings of words be explained.
DO NOT GUESS OR SPECULATE. Do not say "probably", “I guess so”, or “maybe”. Be CERTAIN of your answer or say you don't know or don't recall, or ask for clarification of the question.
You may refer to your supporting documentation, records, etc., for the purpose of refreshing your recollection. You must assert your right to do so. You are permitted to refresh your recollection from relevant materials at any time.
When you are questioned about documents, you can ask the attorneys to identify what documents they are referring to and request a copy of the documents (or any exhibit) to refresh your memory before you answer.
Do not let lawyers put words in your mouth. They will use leading questions to do just that. Do not be mistakenly lead into agreeing with the answer their question suggests.
Do not try to persuade or convince. The judge or magistrate will not be at the deposition. Inconsistent answers, argumentativeness, or overt attempts to be persuasive may be useful to the attorneys in impeaching you at trial.
If the attorneys accuse you of being inconsistent or untruthful at trial, your prior consistent statements made during your deposition may be introduced, otherwise you are barred from using prior self-serving statements.
DO NOT LET FATIGUE CONTAMINATE YOUR ANSWERS. Pay attention. If you feel fatigued, ask to take a break for a couple of minutes. Fatigue causes mistakes that are taken down word-for-word.
Do not be baited or drawn into arguing with attorneys. Remain calm. When questions are repetitive or inappropriate, your attorney can object.
Objections are important. Always listen to your attorney’s objections. Do not continue your answer when your attorney objects. When your attorney objects, pause to allow your attorney to clearly state the objection and the reason for the objection for the record.
Listen to the content of your attorney’s objection before you answer. You may learn from the objection. After the objection is entered on the record, you will usually be instructed to answer the question.
STAY CALM. If the attorneys get sarcastic or testy, let them look bad.
Re-read the above list of suggestions. Remain calm, be prepared, refresh your recollection when necessary, ask for document identification when necessary ("What are you looking at?", “May I have a copy?”), do not expand your answer beyond the scope of the question, do not respond to silence, do not get testy, take breaks when fatigued, etc.
The above information is not intended to be legal advice and presumes you are not represented by an attorney.
