Preparing for a deposition can be challenging whether it is a person’s first or hundredth time testifying under oath. Being questioned frequently causes anxiety. But the experience does not have to be so daunting with preparation.
The following five tips can help you understand the process and what to expect as well as gain insight into how to present yourself effectively.
What is a deposition?
After a lawsuit is initiated, the parties generally engage in discovery which includes exchanging documents and seeking information. Depositions are a key part of the discovery process, allowing both sides to gain insight into a witness’s knowledge and recollections through questioning. Even though depositions occur outside of a courtroom, the testimony is taken under oath and generally carries the same weight as if it occurred in front of a jury. Thus, preparing for a deposition is not unlike preparing to testify in front of a jury.
Key considerations for deposition preparation
The old saying, “practice makes perfect,” is an apt adage for deposition preparation. The best way to practice is to work with an attorney who is well-acquainted with the facts of the lawsuit who can pose mock questions to prepare for the deposition. The following tips and strategies can assist you in navigating questioning and can lead to a transcript that better reflects your (the deponent’s) thoughts and recollections.
Before launching into questioning, it is important to know who is in the room (or zoom) during a typical deposition. Understanding each person’s role can ease anxiety and make the deposition run smoother. This leads us to our first tip, know that you (the witness giving testimony at the deposition) are the most important person in the room. The testimony is all that matters at the end of the day. Although the attorney asking questions might try to intimidate you with tough talk, their questions are not evidence. Answer each question truthfully and to the best of your own personal knowledge – do not guess. If the attorney asking the questions does not like your response, and tries to ask the same question repeatedly, you can always refer back to your prior response. Do not feel pressured to answer a question in a particular way, sometimes the truthful answer to a “yes or no” question is “maybe.”
Our second tip is that the second most important person in the room is the court reporter. The transcript is the only thing that matters after the deposition. If what you said is not included in the final transcript, then there is no accurate record of what you said. It is vitally important to pay attention to the court reporter. They may pause the deposition or interrupt questions/answers if they cannot hear or understand what is being said. They may also ask you to slow down or spell terms. The transcript will only accurately reflect your testimony if you give the court reporter an opportunity to document your testimony.
Once the questioning begins, it is important to follow a pattern to maximize your opportunity to answer succinctly and effectively. Our third tip focuses on the way to handle each question. Listen to the whole question, see it in words with your mind’s eye, slow down and breathe, see your answer to only the question that was asked in your mind, and only then do you say your answer. It is critically important to focus on each question and answer. Do not attempt to answer a different question, or give an answer in the hopes it may avoid a follow-up question. This pattern of seeing the question and response before speaking will help avoid your body’s “fight or flight” response, or “amygdala hijacking.” This pattern also has the added benefit of allowing time for your attorney to make objections on the record if necessary.
Fourth, you have to speak for yourself. Your attorney cannot speak for you while on the record during a deposition. If you do not understand a question or are confused, say you do not understand or are confused. It is often helpful for the witness to repeat the question back to the attorney asking the question to confirm everyone is on the same page. There is no limit to the amount of clarifications you can seek during a deposition. Again, do not guess or speculate: If you don’t know the answer, simply state, “I don’t know.” If you don’t recall, say, “I don’t recall.” This becomes even more important towards the end of the deposition when everyone is tired and wants to go home. A tired witness is prone to say things like “sure” or “ok” in response to questions in the hopes of bringing the questioning to a close. The attorney asking the questions will assume you understood the question if you give a response, so you must speak for yourself and advise them if you do not follow what they are asking. Also, if a document would help you refresh your recollection, you have to be the one to ask to see it.
Understanding how to handle each question as detailed in tips three and four segues into our fifth tip, understanding attorney objections. While on the record, attorneys can typically make three types of objections: form, foundation, or privilege. When an attorney makes an objection based on form or foundation, you still answer the question. These objections will be addressed by the court and the attorneys later. What is important for you to remember is that an objection to the form of the question means the question itself is flawed. For instance, “what did they do then?” would be met with an “objection: form, vague” because the “they” and the “then” lack clarity. If you hear a form objection, it is often an opportunity for you to ask the questioner to repeat the question or to clarify. On the other hand, objections to foundation means that the question seeks information that you lack. For example, questions regarding events that occurred outside of the witness’s view are generally objectionable for lack of foundation. If you hear your attorney object based on lack of foundation, it might appropriate to answer, “I don’t know.” The final type of objection is based on privilege, and your attorney will give explicit instructions on the record for you to not give an answer. Privilege objections are usually rare.
These are just a few essential tips to assist with deposition preparation. By adhering to the principles of truthful and concise testimony, and preparing diligently with your attorney, you can navigate your deposition successfully. The goal is to provide accurate information and avoid inadvertently harming your case. With thorough preparation, you can face your deposition with confidence and contribute positively to the case.
