DEPOSITION DO's & DON'T's

DO:
ONLY answer the question asked
PAUSE before answering
LISTEN to the question
KEEP your answer short
WATCH for the tricky question
ASK! when in doubt
INTERROGATE the interrogator
ASK your lawyer for guidance
BE HONEST
DON'T
DON'T VOLUNTEER information ever, ever, ever!
DON'T GUESS, even if you think you should know the answer.

MORE DEPOSITION GUIDELINES

An oral deposition is sworn testimony taken and recorded before trial. The
purpose is to discover facts, to obtain leads to other evidence, to preserve the testimony
of a witness who may not be available at the time of trial, and to nail down a witness'
version of events.
Cases are frequently won and lost because of a witness' deposition testimony.
One of the best ways to destroy a trial witness, for example, is to show contradictions
between his/her trial and deposition testimony. So, you must take your deposition as
seriously as you would your testimony at trial. The following guidelines will help you.
1.
Do not bring any materials (including personal notes) to the deposition
room unless they have been specifically reviewed in advance by your counsel and
approved by her. Anything you consult at the deposition must be made available to the
interrogator if he asks for it.
2.
Listen carefully to each question. Be sure you understand it entirely. Do
no hesitate to ask for clarification or for the rereading of the question.
3.
If asked about a document, read it carefully before beginning your answer.
If you don't recall the document, or know to an absolute certainty what its author meant,
say so. Don't guess at what may have been meant.
4.
Even if you prepared a document, don't adopt its contents as your
testimony unless you have an independent recollection of the facts set forth in the
document. Remember that the purpose of your deposition is to obtain your present
knowledge and recollections.
5.
Pause before beginning each answer. Answer slowly. This gives you time
to reflect on the question, and to formulate an answer. A good rule is that you should
have your entire answer in mind before you begin speaking. This helps to keep you from
volunteering information. Pausing before answering also gives your counsel time to
formulate and interpose objections. The written transcript does not reflect how long you
take to answer a question or how long you pause. Stop answering immediately if your
counsel starts talking.
6.
Do not become involved in the arguments of counsel. But do pay careful
attention to what is said, particularly by your own counsel, since his/her argument may
alert you to problems with a question. In general, if your counsel indicates she/he has
some problem in understanding the question, it should alert you to the possibility that
there may be a problem you have not considered. Usually after an argument between the
lawyers, you will have forgotten the question or some part of it. Ask to have the question
read back.

7.
freely do so.

You may consult privately with your counsel at any time, and should

8.
You may appropriately qualify your answers with words such as "To the
best of my recollection," "As best as I can recall," "My best recollection is," "I believe...".
On the other hands, where you are sure, do not hedge or unnecessarily weaken the force
of a strong answer.
9.
Do not guess. If you do not know the answer with certainty, say so. Do
not venture an opinion unless you are specifically asked to do so, and then only after
giving your counsel an opportunity to object.
10.
Answer only the question that is asked. Do not anticipate questions. Do
not volunteer information not specifically called for. Keep your answers short. "Yes,"
"No," and "I don't know" are the ideal answers, whenever possible. But when a short
answer would be misleading, you have a right to explain your answer.
11.
If instructed not to answer by your counsel, do not answer even if you
believe the answer would be helpful.
12.
In general, do not make agreements unless cleared first with your counsel.
Don't promise to look up information or to obtain materials, to make calculations, etc.
Do not discuss your availability for further questioning unless cleared first with your
counsel.
13.
Be courteous to opposing counsel at all times. Do not argue with him.
Avoid any display of hostility. Opposing counsel may try to provoke you in the hope that
anger will cloud your judgment. Don't let him succeed; keep your temper.
14.
Remember that we are not trying to present our case at the deposition. Do
not be concerned that all relevant facts probably will not be elicited by the interrogator, or
that his questions create a misleading or partial picture. We will have an opportunity later
on to present our own version of the facts.
15.
Stay within your own realm. Stick with what you know. Do not hesitate
to say that you do not know. Do not volunteer identity of someone who might know.
16.
On complicated or difficult questions, you may state that you need time to
consider the answer.
17.

If you feel tired or uncomfortable at any point, do not hesitate to ask for a

break.
18.
Do not be influenced by the interrogator's apparent friendly,
cooperativeness, or courtesy. He is not your friend. Do not be concerned about
convincing him about the merit or credibility of your testimony.

19.
Do not be concerned whether the interrogator understands, or seems to
understand, what you are saying. If, on the other hand, your counsel indicates some
problem with your answer, very carefully rethink it. You can ask at any point for your
answer or a question to be read back to you. If on further reflection, you are still satisfied
with your answers, you can consult with your counsel.
20.
Do not be upset by the interrogator's accusation that your testimony is
inconsistent with some documents, or with another person's testimony, or with your own
prior testimony. It is a common tactic for the interrogator to suggest an inconsistency
when none may exist. Don't let him rattle you.
21.
Do not assume that the interrogator has accurately described or
characterized your prior testimony or that of another witness or documents when he
purports to do so. Give your counsel time to object to an inaccuracy. Think hard before
accepting the accuracy of the interrogator's statement. Don't let him put words in your
mouth.
22.
Expect to be asked what you have done and what files you have examined
in preparation for your deposition. Discuss this subject with your counsel before the
deposition.
23.
If you are concerned about something you know that might prove
embarrassing, or about something you have done either in connection with the suit at
issue or in preparing for the deposition, discuss it candidly with your counsel before the
deposition. Let him/her decide whether the matter is relevant. Let him/her formulate a
position if the matter is sensitive. Don't spring any surprises on your own counsel during
the deposition.
24.
Answer every question honestly. You are under oath, and intentionally
false answers may constitute a crime. Moreover, falsehoods on the most minor or
irrelevant points may be used to destroy your credibility on more important issues. This
does not mean you have to volunteer information or offer an explanation that is not
expressly called for by the questions asked. Do not do so.
25.
Speak clearly, and answer all questions verbally, not by nodding or
shaking your head. If the court reporter asks you what you said, repeat your answer as
exactly as possible. The court reporter is not interested in further explanation.
26.
The interrogator will form an impression of what kind of trial witness you
will make on the basis or your appearance and performance at the deposition, and that
impression may affect the value he puts on the case. Put your best foot forward; be
honest, and I know you will do well.