Marrs & Henry’s Top 9 Tips for Depositions

June 26th, 2019

Depositions are often the most anxiety-inducing aspect of the litigation process.  A deposition is commonly used to force the opposing party, or non-party witnesses, to answer questions under oath.  Some of the questioning may be only investigatory, while much of it may be openly antagonistic. The depositions are recorded by a court reporter’s transcription, and often also on video.  The record can then be used later for court motions or at trial.

When a witness changes his or her story at trial, the deposition record can be used to confront the witness and undermine their credibility with the judge and jury.  In federal court, depositions can be used in efforts to defeat cases even without trial; Virginia has historically not followed the federal practice, but by an act of the General Assembly this year, the federal practice will be mimicked for state court cases between business entities where the amount in dispute exceeds $50,000.  That new law presages a likely eventual adoption of the federal practice across the board in Virginia.

The following are our top 9 tips for handling your own deposition successfully:

  1. Prepare Extensively.

Cases can sometimes be won at deposition; more often, they can be lost.  You and/or your company must invest the necessary time, working with your lawyer, to assure that you are fully prepared for all likely topics of questioning – and for the handling of hostile opposition.  Typical preparation includes studying documents pertaining to the case, and may include conferring with co-workers or others to refresh your recollections.  While you must always be truthful, your lawyer should help you to phrase your answers in the manner most conducive to your case.

Unfortunately, we find that many clients try to reduce their legal bills by giving their deposition preparations short shrift.  That can be “penny wise and pound foolish.”

  1. Be Well Rested.

While preparation is of vast importance, you should not be pulling an all-nighter to prepare. Preparation should occur sufficiently in advance to allow you to get a good night’s sleep for multiple days prior to your sitting for questioning.  A deposition can last for an entire business day, or even for multiple days.  The duration and the stress level make the experience both mentally and physically exhausting. Tired witnesses are prone to making mistakes, or to making curt remarks that may come back to haunt them later.  These risks can be eliminated simply by avoiding procrastination so that your preparation does not hinder your ability to get a full night’s sleep in the days preceding the deposition.

  1. Listen Carefully.

The lawyer questioning you will not be your friend.  It is imperative that you listen carefully to what is being asked, that you answer the question fully, but that you then stop talking – that is, avoid digressing into other topics.  Volunteering unrequested information will only prompt more questions on the new topic you raised, prolonging your time in the hot seat.  But mostly, your job is to be as accurate as possible, so that you don’t have to try to change your answers later.  (The rules permit that, but only at the cost of your looking shifty.)  Your sworn testimony obviously matters, and getting it right starts with listening carefully to what is, and is not, being asked.  And if you are ever unsure what was asked or if the question confused you, you are entitled to say that you did not understand and to ask that the question be repeated, rephrased, or broken into parts.

  1. Look the part and be respectful.

Depositions will generally be recorded, but they are also an opportunity for opposing counsel to evaluate the kind of impression you would make upon a judge or jury. A deponent should dress professionally and be respectful at all times. It is only natural that some questions or topics will cause you pain, anger or frustration, but it is imperative that you keep your composure. Your lawyer will take care of the arguing; your job is to ensure that opposing counsel leaves the deposition knowing that you will not be rattled and that you will be your own best advocate when trial time comes.  A positive impression at a deposition can increase the likelihood of a favorable settlement, while a negative impression can damage your hopes for negotiations.

  1. Do not Guess.

Sometimes during a deposition, it is natural to feel that you need to answer a question, even if you truly do not know the answer. Resist the urge to guess or speculate. On the other hand, some witnesses have discovered that “I don’t know” seems to curtail the hostile questioning, and they try to cut the deposition short by disclaiming knowledge about pretty much everything.  Doing this can leave you unable to testify effectively at trial since you will not be allowed to testify about subjects you’ve sworn you know nothing about.  “I don’t know” is the right answer when you truly don’t know, but only then.  Even better, try “I am having trouble calling that to my mind right now.”  That response leaves open the prospect of reviewing documents later to refresh your recollection.

  1. Breaks are Allowed.

You are entitled to take occasional breaks during depositions. Just speak up whenever you need to visit the restroom, stretch, or even just go outside for a quick cigarette.  The limitation is that you cannot ask for a break because you have just been asked a difficult question and want time to work with your lawyer on exactly how to answer.

Every case has good facts and bad facts, but the worst thing you can do during a deposition is to try to lie your way around the bad facts. Lying puts your credibility with the judge and jury in question and can lead to you losing even on issues you perhaps should have won.  Worse, lying under oath – perjury – is a felony, punishable by a prison sentence.  At the start of the deposition, you will take an oath to “tell the truth, the whole truth, and nothing but the truth.”  That oath is not a mere formality.  Lying at deposition is probably the very worst thing you can do.

  1. Make sure your attorneys know everything.

Honesty and candor with your lawyers are crucial to any hope for success in litigation. If you are fully candid with your counsel, he or she will assist you in preparing to answer the difficult questions in the most favorable way permitted (within the bounds of the truth).  Nothing is worse for your lawyer or your case than to have important facts, especially negative information, come out for the first time as a surprise answer to a deposition question.

  1. Exercise your right to read and review.

At the end of the deposition, you will be offered the right to read the transcript of the deposition should it be ordered. You should reserve the right to read every time, as this permits you the opportunity to review the transcript to ensure that your testimony was taken down accurately.  You can even change your testimony if you believe you have misspoken, though changes of this nature should be made only after careful consultation with your lawyer.

At Marrs & Henry, we place great emphasis on preparing our personal and corporate clients for success at depositions. We work to ensure that our clients understand the process and are well prepared, so as to reduce the stress and difficulty inherent in the process.