Helpful Advice If You Are Called To Provide Testimony At A Deposition
In any type of civil litigation, whether a personal injury case, a probate court case involving a relative’s will or trust, a business dispute with customers or other owners, or a matrimonial case, a party or an important observer may be called to provide testimony at a deposition. A deposition is being questioned under oath often by the opposing attorney, outside court, usually in a law office or a court stenographer’s office. The judge is not present although she is usually accessible by telephone. The deposition is conducted by the lawyers and the court reporter who transcribes all questions, answers, and legal objections. In many cases the lawyers’ perceptions of how this deposition testimony will impact the judge or jury determines whether the case goes to trial or serious settlement discussions occur.
In preparing to give testimony under oath at a deposition it is very important to review the issues and likely questions with your attorney in advance. This is not meant to modify or conceal the truth. Every witness is under oath to tell the truth and no ethical attorney will attempt to coach a witness to deviate from that oath. Nevertheless, it is important how a witness looks and behaves and reacts to the questions. It is important to look like and act like a person who can be trusted to be truthful and not a person who takes telling the truth lightly.
It is important to realize that testifying is not like ordinary conversation that takes place in other circumstances. Customarily, we anticipate where a question is going and provide an answer before the other person completes the question. This ordinary custom can be fatal at a deposition where the context of the question can change depending on how the lawyer ends it. An early answer can end up providing testimony the exact opposite of what the witness actually intends. So, NEVER ANSWER BEFORE THE QUESTION IS COMPLETED.
Another principle sounds simple but takes persistence during the heat of examination by the opposing attorney. Always give yourself a few seconds to make sure you know exactly what the question is before you begin to provide an answer. This allows the witness to realize that the question is confusing, vague or contains multiple questions. It also allows the witness’ attorney time to inject an objection to the question if deemed appropriate. As a witness under oath you should not answer confusing or vague questions or questions that contain multiple questions. The witness can properly say, “I don’t understand the question. Can you clarify the question?” Following this principle requires that the witness remain focused and not give in to the natural tendency to think if I just answer, the deposition will be over sooner and I can go home. Remember, everything is being taken down by the court reporter and your answer will be used against you if the case goes to trial; and it also could mean a less favorable settlement with the opposing party or the insurance company. How well you do in the deposition can be crucial to obtaining a good result in your court case.
Preparing Clients For Deposition Is Like Making Pancakes!
Here is a link to a great deposition post from our blog last year by Canton attorney Brian R. Wilson titled, “Why Preparing Clients For Deposition Is Like Making Pancakes.” Check it out!
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Mark Segreti is Of Counsel to the Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues. He has been a law professor teaching law students on state and federal procedure and has published scholarly articles on sophisticated legal issues while also publishing articles that assist other lawyers in the practicalities of legal procedure and substantive law. Mark is an experienced trial and appellate attorney who has litigated before judges and juries in both Ohio and the United States courts.