In civil litigation, the depositions of the litigants are extremely important. Depositions may be used effectively to obtain or avoid summary judgment, as well as to impeach testimony provided at trial. Preparing for your deposition is vital. Most experienced litigators adhere to several basic rules for preparation of witnesses. They include:
- Tell the truth. Depositions are given under oath; and lying under oath is a felony. Moreover, lying is not good strategy. Judges and juries can spot a liar from miles away and they don’t like liars. Just about every case has a few bad facts. Lying about them is not a winning approach. Developing a sound strategy to win despite those facts should be the focus.
- Don’t guess. If you guess wrong, the testimony can be used against you. If you don’t know the answer to a question, just say so. You are not obligated to know the answer to a question and guessing at answers is a great way to harm your case. I like to have my clients practice saying, “I don’t know.” For some people, it is very hard. I ask them questions they clearly do not know the answer to as an exercise to practice saying “I don’t know.”
- Don’t volunteer. Answer the question you are asked and only that question. Then stop talking. Wait for the attorney’s next question. This is not the way we converse in every day life, but depositions are not everyday conversations. They are formal legal proceedings. Your attorney cannot properly represent you if you are answering questions that you were not even asked.
- Review the facts that are vital to your case. Although you are not obligated to study for your deposition, as a general rule, I prefer for my witnesses to review the case pleadings and relevant documents on topics that are vital to their testimony. I also believe that witnesses tend to testify more effectively if they practice answering questions during a prep session.
- Get some rest, show up on time, follow your attorney’s instructions, and make a good impression. You are being evaluated by the opposition and you want to leave the impression that you will be a worth adversary in court should the case make it that far.