Being a trial lawyer for over 20 years I have seen many cases succeed and fail. In many of these cases, I can point to a single event as the moment when the case’s outcome was foretold. More often that moment is during a deposition. A deposition of a client, witness or adversary can be the proverbial “thrill of victory or agony of defeat.”
For those who are blissfully ignorant of what a deposition is, let me share a brief description. A deposition is the questioning of a witness, under oath, in the presence of a court reporter. The opposing attorney is normally the one doing the questioning and it is usually the by-product of litigation. The court reporter records the questions and answers provided by the witness and all other matters that may arise during the time of the deposition. A written transcript is created which becomes part of the record of the case.
This is a list, by no means comprehensive, of what I believe are the top ten mistakes deponents (the person being deposed) make during their deposition:
10. Lying. We all know lying is bad but in a deposition it can be criminal. Giving a deposition is testifying under oath, just as in Court and the penalties of perjury do apply.
9. Not saying you do not know when you do not know. A deposition is not like a high school math test where you have to answer every question. If you do not know the answer to a question, simply say, “I do not know.”
8. Not saying you do not recall when you do not recall. No one is expected to recall every facet of their life. When asked what the name of your Great Aunt’s cat is, it is perfectly alright to say “I do not recall.” (However, it would be helpful to your case if you can recall the facts which are beneficial to your case.)
7. Dressing for failure. While a tuxedo is not necessary, dressing as if you are on your way to the beach or recovering from an all night bender, is probably not presenting the best appearance. It has been my observation over the years that a neat and well dressed witness is treated with more respect by the questioner.
6. Not answering the question. Too many deponents believe that they are faster or smarter than the attorney asking the questions and answer not the question posed but the one they think the attorney is getting to. All that does is slow down the process and unfortunately make the deposition last longer. Answering the question posed is the quickest way to end the deposition and it may turn out that the attorney never gets to the follow-up questions that you anticipate he would get to. You should not withhold information but you are not required to volunteer it either.
5. Grunting, groaning or nodding your head. The court reporter is taking down everything stated in the room but they cannot take down non-verbal signals or indecipherable emanations coming from your mouth. Your answers must be clear and articulate. This avoids any ambiguity when the transcript is put into written form.
4. Fighting with the questioner. If you are represented by counsel at your deposition and if your counsel does not object to a question and tell you not to answer, you should assume that the question is not objectionable. As such, unless otherwise told by your attorney, you are required to answer the questions posed by the questioner even if you do not want to answer or would prefer not to.
3. Guessing. The old line from Dragnet is appropriate here “just the facts.” You are testifying to your knowledge regarding the events of which you are aware. You are not there to guess about the facts or circumstances. You should restrict yourself to answering things of which you are personally aware. If you are asked to guess, your answer should be that you do not want to guess, and that you don’t know.
2. Don’t treat the attorney as your friend. Experienced attorneys try to build a rapport with the person they are questioning in an effort to have them put their guard down to elicit answers to questions which may not have otherwise been provided. The attorney asking you questions, especially in the area of litigation, is usually representing the opponent. The opposing attorney has a client to represent. That client’s interests are generally adverse to yours. Therefore, the attorney is not your friend.
1. Talking too much. Having sat through hundreds of depositions over the years, I have wished for the creation of a button which I could push that would send a shock wave to the deponent which would remind them to only answer the question posed and then stop talking. Many depositions are prolonged and unnecessary information is disclosed when a deponent, for whatever reason, simply cannot answer only the question that is asked. Experienced attorneys often try to elicit this by pausing between questions and waiting for the deponent to fill in silence with more testimony. What this does is diminishes the previous answer and potentially opens up additional areas for inquire. Simply put, the best way to conclude a deposition is to answer the question and then stop talking. If the questioner wants additional information, they will ask more questions.
The outcome of depositions routinely has an impact on the overall case whether it is the information derived from the deposition or the parties’ evaluation of the deponent as a potential trial witness. Following these ten simple rules can help deponents give better testimony, or, at least stay out of trouble.
David McGee’s practice is based in the litigation section at Thomsen & Nybeck, P.A. Dave brings his 20 plus years of experience representing Community Associations in construction defects and insurance disputes. Dave has recovered millions for Associations in disputes with developers, contractors and insurance companies, and heads up the firm’s “Property Insurance Claims” Group. Dave has been named a “Top Lawyer” by Minnesota Law & Politics and Minneapolis/St. Paul Magazine for a number of years. Dave has represented clients in numerous appellate cases including Chapman Place Ass’n, Inc. v. Prokasky, 507 N.W.2d 858 (Minn. Ct. App. 1993); Ly v. Nystrom, 615 N.W.2d 302 (Minn. 2000); and Peggy Rose Revocable Trust v. Eppich, 640 N.W.2d 601 (Minn. 2002). Dave represents clients in arbitrations, mediations, court actions, trials, and appellate work. Dave is a frequent lecturer and has written numerous articles in the area of Insurance, Construction, and Real Estate Law. He is also a qualified neutral under Rule 114 of the Minnesota General Rules of Practice (mediation and arbitration).