Giving formal deposition testimony can be stressful if you are not prepared. If you are anxious or uncertain, those emotions will affect your appearance, and may adversely impact your credibility. You may seem evasive or unable to remember, when you actually are just too nervous or too surprised. Here are some ways to maximize your deposition performance:
1. Watch a training video for witnesses facing depositions. There is nothing like “being there.” Your attorney should provide you such a video on request. Several companies produce these “preparation” videos. The video should be one simulating an actual deposition process. It should point out pitfalls and opportunities on how to answer questions.
2. Ask your attorney questions about the process well before the deposition date. What are the issues in the case, and how will the attorney taking the deposition likely approach those issues in the deposition? You can be sure the attorney is looking for more than just information. She or he wants “admissions” that the attorney can use to make or defeat the case. An admission might be, for example, in an employment case, the answer “Yes” to the question: “Did you agree by this writing [Exhibit “A”] that you were an “at will” employee?”
3. Listen carefully to the scope of the question. Answer only the question. Avoid blurting out long answers. They only invite more questions going down trails you might have better avoided.
4. Practice a mock deposition with your attorney, and let your attorney “rough you up” a bit with some aggressive or tricky questioning. That is the best way to learn. Your attorney should initiate such a preparation session, but if she does not, ask for it.
5. Whatever happens, remain cordial and polite. Avoid being sarcastic or argumentative. Being rude or angry will cost you points with the judge or jury. Most depositions are now videotaped, and so anticipate your face will be telling a story, as well as your words.
6. Lawyers can ask the dumbest questions, or the most compound, complex, and confusing questions. If you get a question you don’t fully understand, don’t answer the question. Instead, ask for a clarification, explaining that you don’t understand the question.
7. If you need time to fully examine a document placed before you in deposition, take the time. Don’t be rushed into answering questions about a document you do not remember, or have not reviewed fully.
8. Memory is notoriously poor with the passage of time. Don’t state as a certainty that you remember things that you are not able to recall clearly. State instead: “I don’t recall”, or “My best estimate is…” Avoid guessing.
9. Be rested, and as focused as possible. Do not be under the influence of medications. If you are tired during the deposition, and unable to concentrate, ask for a recess.
10. If the attorneys make objections, let them complete the objection for the record, and unless instructed by your attorney not to answer, complete your answer. If the attorneys engage in a yelling match, or undertake a long exchange of argument about a point of law on the record, let them finish, while you wait patiently for a question to answer.
These ten points will not make the process particularly fun, but they will give you a greater sense of confidence and control to complete the process favorably to your case. Not enumerated is the obvious best advice of all: Tell the truth.