Litigation + Valuation Perspectives

Demystifying Valuation, Economic Damages + Forensic Accounting

Surviving a Deposition: Part III

Tips for Deposition Testifying

Following are some tips that may be of help to you should you ever be called to testify at a deposition:

1. Always prepare for your deposition with your attorney. Reviewing what the opposing attorney is going to ask you will do wonders in calming you.

2. Present your best appearance at the deposition. The opposing attorney will be looking at you to decide how you will impress a jury. Therefore, you should dress neatly and conventionally.

3. Make an effort to speak clearly and audibly. The court reporter must record everything you say, and it may later be used in court. Don’t nod or shake your head in answering because the reporter can’t record it.

4. Answer only the question that was asked. In other words, don’t volunteer information that has not been asked. For example, the proper answer to the question, “Was anyone else there?” is either “Yes.” or “No.” not “Yes, there were several other people there.” Try to answer as briefly as possible, and usually with a simple “yes” or “no”; that is, unless the opposing counsel asks you to expand on your answer.

5. Don’t guess or speculate, e.g. “Well, I probably did,” or, “I usually do.” Be careful about agreeing with the opposing attorney when he or she asks you to give your opinion about a “hypothetical” situation that is contrary to your position. Always state your answer “Under your hypothetical situation, it could be true”; or “Using the hypothetical facts as you’ve stated them, it could be true.” Otherwise, later at trial, the opposing attorney can repeat for the court your verbatim answer as was stated in your deposition. Usually, however, the opposing counsel will “forget” to state in court that you were asked to assume some hypothetical facts before you gave the answer the opposing counsel wanted to hear from you.

6. Avoid exaggeration. Don’t try to improve upon the facts of your case. This is always recognized by the opposition who can use it to their advantage. If the judge or jury thinks you have exaggerated on one point, they may believe you have exaggerated on others.

7. Don’t answer before the question is completed. Be sure to let the opposing attorney finish the question completely before you begin to answer.

8. It is important for you to seem interested in your case. Be sincere and straightforward.

9. Carefully examine photographs or documents. If you are asked to identify them by the opposing attorney, take your time. It’s alright if you do so. It’s more important to be careful. If you cannot remember or be certain, say so. If you say a picture truly and correctly shows the scene as it was but are mistaken, it may later create a problem in your case.

10. Don’t be concerned about time. This means you may take your time in answering a quesiton. The deposition does not show length of time which you used in considering your answer. However, you do not want to give the impression that you are unsure of yourself or are deciding on the “best” answer. On the other hand, don’t blurt out answers so quickly that your attorney doesn’t have time to enter an objection in order to keep you from answering  a particular question or to give you time to think about your answer without it appearing you are fumbling around for the right words. Once your attorney has completed his or her objection, he or she will then tell you whether an answer is required.

11. Sometimes the opposing attorney will try to talk to you about the case “off the record” before or after the deposition. Don’t be drawn into these informal conversations. You may say something careless which can be used against you.

12. Never state facts you don’t know.This means don’t even guess or estimate what the answer should be in order to not appear ignorant. If you do not know the answer to a question, you should say you do not know, even though you are afraid you may appear ignorant or evasive by saying that you don’t know. There is nothing wrong in admitting that you do not know. If you guess or estimate, the opponent can show that you do not know what you are talking about or imply that you are deliberately misstating the truth. Generally speaking, the other attorney will know what the answer should have been. He or she may have asked the question knowing you would not know the answer hoping  you would try to guess. The same can be said for not remembering, simply state, “I don’t remember” or “I can’t recall.”

13. Never try to explain or justify your answer. You are there to give the facts as you know them. You need not apologize or attempt to justify those facts. If you try to do that, it will look as if you doubt the truth of your own testimony. You should not try by your answers to convince the other attorney that you are right because you cannot succeed. A deposition is for fact gathering, not argument.

14. Don’t worry when you answer a question whether your truthful answer will help or hurt a case. Your attorney can deal with the truth effectively. Any other kind of answer will hurt your case.

15. Be sure you understand each question before you answer. If you do not understand a question, do not try to answer it. Tell the questioner you do not understand the question. A wrong answer in response to a misunderstood question can harm your case. If, several questions later, you realize that you mistakenly gave an incorrect answer earlier, it’s okay to mention to the opposing counsel that you would like to go back to that particular question and correct your previous answer.

16. Always maintain a pleasant demeanor.Sometimes the opposing attorney, after lulling you into thinking they are going to treat you nicely during the deposition, will suddenly change his or her tactics and begin to speak angrily and loudly at you in order to intimidate and fluster you. They are hoping you will say something that will hurt your case later at trial.

17. You will have the chance to review and correct your deposition transcript. After the court reporter prepares the hard copy of your deposition transcript, you will be given the chance to review it and make corrections before it is put into final form. It’s not unusual to find errors in a deposition simply because the reporter did not hear a word or phrase as you intended them.

Don Bays, CPA/ABV, CVA