copyright 2004 George W. C. McCarter

McCarter & Higgins

48 Drs. James Parker Blvd.

Red Bank, NJ  07701

(732) 450-1090


Most lay people have seen dramatizations of courtroom testimony, so they have some general idea about how to conduct themselves as witnesses at trial.  The client who is preparing to testify in court usually understands why he is testifying.  That is often not so when a client gives a deposition.  The ostensiible purpose of a deposition is for the opposing lawyer to find out what you know about the case.  But you should understand that because the lawyer for the other side conducts the deposition, the real purpose of your deposition is to help the other side.  This essay is intended to guide you, the client, in preparing to give a deposition properly, so that you don’t help the other side more than is absolutely necessary.

Until Bill Clinton was deposed about a blue dress, the average citizen didn’t know much about depositions.  The concept may be more familiar now, but a brief review may be helpful.   A deposition takes place in a lawyer’s conference room.  The lawyer for the other side will ask you questions under oath, and the proceedings will be transcribed verbatim by a court reporter.  A transcript of your testimony will be printed several weeks later, and all lawyers in the case will have a copy.  Your lawyer will attend the deposition, but his role will be limited.  He can object to questions and, on rare occasions, tell you not to answer them, but he can’t help you when you get in trouble.  Testimony at deposition is every bit as important as testimony at trial, and on both occasions you are on your own.
          To prepare for a deposition, you should make sure you are generally familiar with pertinent documents, but you don't need to memorize them.  If asked about the contents of a document, it is always permissible to answer "I'm not sure" or "I don't remember" if those answers are true.  Those answers are particularly appropriate if the document is not in front of you to let you check your answer.  A deposition is an inquiry into what you know.  It is not a test of your memorization skills. 
1.   A deposition can expose your lies at trial.

         Bear in mind that you can’t advance your own case at your deposition.  Unless you die or become incapacitated, your lawyer won’t be able to use your deposition for any purpose at the trial.  Especially when you are dealing with experienced counsel on the other side, the whole point of a deposition is for the other side to advance its case by damaging yours.  There are several ways to do that.  First, by getting a record of your answers to questions that are likely to occur at trial, the other side can make it difficult or embarrassing for you to give a different answer before the jury.  If you do give a different answer at trial and your opponent doesn’t like it, he will confront you with your deposition testimony and ask the time-honored unanswerable question: “Were you lying then or are you lying now?”  Most observers conclude it is the latter, and they are probably right.  When you gave your deposition, you didn’t have a complete picture of the case.  You may not have understood the importance of particular facts, and you therefore made a damaging admission without knowing it.  Later, when you and your lawyer are preparing for trial, there are many ways your lawyer can “encourage” you to tell the version of the facts that is most helpful to your case.  It is truly amazing how many lawyers fail to re-read (or read) their client’s depositions, and so set them up for devastating cross-examination when they let them lie.  (It is a sad truth that perjury probably occurs every day in every courtroom in America, and depositions are far more effective than judges in combating it.)

          To be less cynical for a moment, there are times when inconsistent testimony at deposition was a legitimate mistake and the subsequent correction at trial is truthful.  The guiding principle here is that the earlier the correction is made, the more credible it will be.  If your lawyer catches it during the deposition, he may correct it on “cross examination” after the opposing lawyer has completed his questioning.  Particularly if there is no off the record break between the two examinations, your same day correction may put the issue to rest.  You should also read the transcript when your lawyer sends it to you and notify him immediately if you find any errors. 

2.  Lies at depositions can hurt you too.

          A second way your opponent can help his case at your deposition is the mirror image of the first: he can get you to tell a lie at the deposition he knows he can disprove later.  The classic example is when he has an undisclosed recording of a conversation with you.  An inexperienced lawyer may tell you at the deposition that he has the recording, in the hope that you will give the (truthful) testimony he ultimately wants.  A veteran will want you to lie, so that at trial he can read back the lie to the jury, together with the evidence that refutes it, to prove you are an untruthful person.  Such a lawyer will prepare his questioning in a way that, unless you are truthful by nature, you will be lulled into giving him precisely the lie he knows he can expose to your detriment later.  One way of doing that is to refer to prior unsworn occasions when you may have told the “stretcher” in question.  “Now I understand it’s your position you never spoke with John about the fence.  Is that correct?”  That kind of question is a tipoff that the opposing lawyer has some pretty good evidence that you did talk to John about the fence in question, but you won’t find out for sure until it’s too late.  If he didn’t want you to answer “yes”, he would simply ask whether you talked to John about the fence.  The obvious advice: don’t lie at your deposition, especially when the opposing lawyer seems to want you to do so.

3.  Recognize and beware of leading questions.

          The question about the fence above is an illustration of a leading question, best defined as a question that suggests its own answer.  Your lawyer is not allowed to ask you leading questions, which is why direct examination can be so difficult at trial.  But your adversary has a virtually unfettered right to use this technique, and you should be wary of it.

          If the opposing lawyer asks you a leading question, pause for a while before you answer it.  Make sure you fully understand the question and what point the lawyer is trying to make if you answer as he wants you to.  If you are not sure you understood it, ask to hear it again.  That is especially true if you were daydreaming when the question was posed and don’t remember what it was.  NEVER agree to a leading question when that happens.  It is always your right to demand that the question be repeated.

          A good way to respond to a leading question is to rephrase it in your own words.  “No, I wouldn’t put it exactly that way.  What actually happened was …”  At trial, a judge can force you to answer yes or no, even to a leading question.  There is no judge at a deposition, and no reason why you should answer every question precisely the way the opposing lawyer wants you to.

          The key thing to remember about leading questions is that when a lawyer asks one, he wants you to give a particular answer.  You should think very carefully before you do so.

4.  Be cautious when you volunteer.

The usual form of this instruction is to say “don’t volunteer information at your deposition”, and that is not bad advice.  Often the opposing counsel appears to have difficulty forming a question, and the witness is tempted to help him out. Don’t do this.  The opposing lawyer isn’t there to help you, and you shouldn’t help him.  If there is an awkward silence while the lawyer is struggling for his next question, you can be sure he is more uncomfortable than you are.  Let him suffer. 

I must mention the most common, and most annoying, form of volunteering by my clients at deposition.  When asked a question seeking personal knowledge, the client answers “I don’t know, but I could check my records back at the office and let you know.”  That is an invitation to your second deposition.  The first three words of that answer were all that you should have said.  If the opposing lawyer follows up with questions about documents, then you must answer truthfully. But if you don’t know that the requested information is in particular documents, there is no reason to speculate about where you could “check”.  As mentioned, the other side may have the right to re-depose you if documents are finally located.  Also, you are the one who will have to do the “checking”, and I guarantee you won’t feel like doing it when the time comes.

The reason I don’t fully endorse the “never volunteer” instruction is there are occasionally times when volunteering can be helpful.  One example is when you rephrase a leading question, as I suggested earlier.  Another is when you have given a truthful answer that, by itself, may unfavorably or incompletely state your case.  It is a good idea when that happens to say something like “yes or no isn’t a complete answer” or “I need to clarify that answer”, etc.  And if there is a document in the room that may help you give a complete answer, feel free to ask to look at it before you answer. Common sense is your best guide, but I would err toward the adage that less is more.

To close where I began, remember that the sole purpose of your deposition is to help the other side.  The other side is entitled to find out what you know about the case, and you should give that information if properly asked.  But if you have read this far, you will have a better idea of what you shouldn’t do at your deposition than most rookie witnesses.  Good luck!