Don’t answer questions you don’t understand. Rather, ask for clarification. Avoid using adjectives and superlatives such as “never” and “always,” which may be used to distort or mischaracterize your testimony at trial.
Don’t guess. No rule prevents opposing counsel from asking a witness to speculate, but you should generally avoid doing so. You are required to tell the truth, not to speculate or to volunteer guesses. The best way to cause a jury to disbelieve your testimony is to make inaccurate or unfounded statements, which opposing counsel will surely point out at trial.
Don’t be tempted to “plumb the depths” of your memory for a forgotten piece of information, however. If you’re asked, for example, if a patient displayed a specific symptom during an appointment 4 years ago, the true answer is likely to be “Not that I recall,” rather than “No.” Qualify similar answers with statements such as “To the best of my recollection” or “Not that I recall at this time.”
If opposing counsel asks questions based on a particular document, ask to see the document. Review it carefully to determine:
- who signed or authored it
- when it was prepared and dated
- whether it is a draft copy
- whether it contains confidential information relating to patients other than the plaintiff
- whether it carries attorney–client privilege
- most important, whether opposing counsel has quoted it out of context.
TABLE 3
Deposition Dos and Don’ts
| Always tell the truth |
| Actively listen to questions, and pause before answering |
| Keep your cool; never lose composure |
| Answer only the question asked |
| Stop speaking and listen carefully if your attorney makes an objection |
| Avoid long narratives, and don’t volunteer information |
| Don’t speculate or guess |
| Avoid absolutes such as “never” or “always” |
| Avoid jokes, sarcasm, and edgy comments |
| Ask for breaks if needed to keep from becoming inattentive |
| Carefully examine documents, reports, etc., before answering opposing counsel’s questions about them |
| Ask for clarification of confusing questions |
| Remember: Nothing is “off the record” |
| Don’t waive your right to read and sign the deposition transcript |
Procedural pitfalls. Throughout the deposition, attorneys may periodically tell the court reporter that they wish to have a discussion “off the record.” Nothing is off the record for you, however. If you make a statement when the court reporter has been told to stop, opposing counsel can summarize on the record everything you said during that time.
At the beginning or end of the deposition, one of the attorneys may ask if you wish to waive the right to read and sign the deposition transcript. Seek your counsel’s advice, but defendants usually choose to retain this right. Typically, you have 30 days to read the transcript and correct errors. Keep in mind that substantive changes beyond typos are likely to be the subject of intense cross-examination if the case goes to trial.9
Depositions are sometimes videotaped, usually because a witness will not be available at the time of trial. Because the jury will hear and see you, approach a videotaped deposition as if it were an actual trial. Dress appropriately, speak clearly, and look directly into the camera. Don’t feel embarrassed about making sure that you are taped with the best possible lighting, camera angle, and background.
Keep your guard up!
Don’t allow yourself to be distracted if opposing counsel jumps from open-ended questions to clarification questions to “pinning-down” questions. An erratic approach could be part of opposing counsel’s strategy. Answer only the question asked, and give the shortest correct answer possible to each question.
Opposing counsel may ask a question in a way that suggests substantial confusion or misunderstanding. If this confusion does not affect your testimony, you don’t need to clear up matters for opposing counsel. If, for example, opposing counsel asserts that one of your statements is contradictory, an appropriate response may be simply, “No, it wasn’t.” It is opposing counsel’s job to explicate further details.11
Opposing counsel may approach the deposition with a particular demeanor—friendly, eager to learn—in an attempt to get you to let down your guard and speak more freely (see “Personae sometimes adopted by plaintiffs’ attorneys to obtain information at deposition”).
During a full-day deposition, particularly, the greatest likelihood of making a mistake begins around 4 pm. Some attorneys may reserve especially important questions for this time, hoping that the witness will be less guarded. Start the day well-rested and ask for breaks if fatigue begins to affect your concentration.
Be alert to questioning designed to elicit only “Yes” answers. This technique—often used by salespersons—makes it difficult to say “No” in response to an ambiguous question. Last, point out errors if opposing counsel misquotes earlier testimony or states facts incorrectly. These mistakes may be innocent, or an attempt to distort your testimony.