If you have been summoned to give deposition testimony, it can feel intimidating and overwhelming. Most people have never participated in a deposition. At Ruiz & Smart, the most important rule in a deposition is tell the truth.

For the witness, a deposition means sitting for hours while an attorney, who has been paid to do everything they can within the confines of the rules (and sometimes outside the rules) to defeat and devalue your legal case, asks questions that you must answer truthfully under oath. Each answer you give is followed by another question, until possibly many hours later, the attorney runs out of questions or runs out of time.

  • It can feel like the questioning attorney has all the power. They have an outline, experience, and preparation.
  • The witness has power too. The witness can choose how they will answer the attorney’s questions, control over how they react to the attorney’s tactics, and the power to ask for a break when they need it.
  • The most important rule to remember is tell the truth. Juries can tell when a witness is credible. Even if you think a fact will hurt your case, talk to your attorney and make a plan for it. If you don’t remember something, say so.

The questioning attorney’s power

Depositions can feel unfair to the witness. The questioning attorney has the power of preparation. They will have read every document in the case, Googled the witness, and will have an outline to guide them. In some cases, the attorney has paid an investigator to conduct surveillance on the witness, or will look at the witness’s social media.

The attorney has the power to choose not only the questions but how to ask them and in what order. Attorneys have years of experience and have honed methods for affecting how you feel; how to make you angry, how to put you at ease, keep you talking, or even to keep you from telling your whole truth.

The witness’s power

The witness has power, too, beginning with having lived the facts that are important to the case. The witness has the power to tell the truth or not. To listen or not. To tell the facts or promote an agenda. The witness has the power to frustrate the attorney or evade the question.

Many a witness has showed up to a deposition ready to be combative. They can be eager to do their company’s bidding. A defendant might feel righteous indignation for having been required to sit as a witness. Many witnesses believe they can outsmart an attorney. Some witnesses leave common sense at the door and say they cannot understand any questions. Others say they can’t remember anything their opponent’s attorney wants to know, while remembering the minutiae of every fact their own attorney requests. Some witnesses just lie. Don’t fall into these pitfalls. Keeping your power means staying focused on the question at hand and telling the truth.

The truth will set you free

The fundamental principle in our cases is that if the truth is not on our side, then we don’t deserve to win. A jury can spot and will be repulsed by a liar. As questioning attorneys, we use our preparation to help even adverse witnesses tell the truth, and we make this very obvious so that the jury will clearly see when a witness is lying. We strive to ask simple, understandable questions to contrast with long-winded, evasive, or useless answers. The truth is usually short and sweet.

As a witness, you should come to a deposition well-rested and ready to listen. The listening is as important as the answering.

An answer is received against the backdrop of the question. For example, the word, “yes,” is meaningless unless you know and understand the question to which you are responding. So, if you don’t understand the question, then you’re not ready to answer truthfully. The attorney could be asking for different information, or your answer could be misunderstood. It is always okay to ask for clarification from the deposing attorney

If you don’t remember information, tell the truth – that your don’t remember. Guessing or supplying information that you think could be true isn’t the truth; to the contrary, it’s misleading to imply that you do remember or do know the answer.

Because the truth is usually short and sweet, answer questions with as few words as you can while answering fully. Some questions, of course, do not lend themselves to a short answer. An open-ended question, such as one that asks you to state the ways you’ve been impacted, requires that you take your time to answer. Telling the truth to an open ended question may require that you let the questioning attorney know that this is all you can remember right now and that there may be additional information.

Don’t be manipulated

Whether the attorney is offensive or is trying to win you over, rest assured that their goal is to affect your testimony. The actions of a friendly attorney and a bullying attorney have one thing in common: They want to get you to stop listening and start blabbing beyond what you’ve been asked about. No matter the theatrics, focus on the question and nothing else. If you understand the question, answer it and stop talking. If a long silence follows your answer, let the silence linger. The best witnesses win the silences. 

The most important rule in a deposition is tell the truth!

We’ve prepared hundreds of clients for deposition, and we know the nerves can get the best of you. If you need a break, ask for it. The power imbalance is real, but you have power as a witness. And if you remember nothing else during your deposition, remember the most important rule – tell the truth!

Learn more about what makes Ruiz & Smart different on our “Why Us” page. We’re here to help!

For more information on depositions, check out these resources:

 

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