At the February 11, 2014 Chapter Meeting Hamp Ford of Ford, Parshall & Baker and David Hubbard of Columbia Insurance Group gave an entertaining presentation on how to prepare for a deposition. Hamp and David also prepared the following information on giving depositions.
RULES TO HELP YOU GIVE A DEPOSITION
Before the deposition assure that the lawyer involved makes you aware of the issues involved so that you have a clear understanding of why your deposition is being taken and the subject matter you are likely to be asked about. Your obligation is to answer only the question asked. You are not expected to and should not narrate, volunteer or opine on issues unless expressly asked. If review of notes or reports aid in refreshing your recollection, the review might be carried out in advance of the deposition in order to save time for all involved. Do not bring anything to the deposition unless expressly asked to do so.
The deposition is not “the trial” and it is not your role to advocate – even if you happen to be a party. The attorneys are the advocates. As a witness you should ordinarily avoid taking sides. Your role is to give accurate factual information. Realize you cannot win the case at your deposition- you can only lose. Rarely would you be asked for opinions unless you have special expertise. With preparation and familiarity with the process you should give a confident and credible deposition testimony.
The following specifics are good rules to practice when serving as a witness during a deposition:
- Tell the truth;
- Be responsive to the question asked and do not volunteer additional information (this is not the trial);
- Understand the question and answer only the question asked. Try to give direct answers rather than explanations for your answers;
- Take your time and make answers short if possible (ok to say “yes” or “no”);
- Never guess;
- It is okay to say “I cannot remember” – if you do not remember;
- Be patient; it will not end sooner by being in a hurry to give your answers;
- Never lose your temper, even if you are baited;
- Be polite but firm; show sincerity, respect and courtesy to all;
- Speak clearly and loud enough to be heard by all present;
- Always finish your answer;
- Correct your answer during the deposition if you have made a misstatement;
- Read the relevant document before giving your answer;
- Listen to objections as may point out ambiguity and questions calling for speculation;
- Do not voluntarily bring written materials to the deposition;
- Be consistent in your testimony and version of events;
- If you need a break during the deposition, say so;
- Do not answer by a gesture or shaking of the head (yes or no); you must verbally speak;
- Wait until the question has been completed (do not anticipate the end of the question and begin talking over the lawyer – the court reporter cannot report both persons talking simultaneously).
- If you are prepared and aware of the issues in dispute, and prepared, you will be comfortable and confident as a witness.
Conclusion
Depositions are often most important phase of trial preparation; we may win or lose trial through deposition. You must be thoroughly prepared and aware of all issues and subject matter upon which questions will be based. As a witness, you must be thoroughly familiar with subject matter and the process in order to give confident, credible, convincing deposition testimony. Do not stint on the time necessary to give a strong, successful deposition.