Practice Guidance: Deposition Defense (Part I): Preparing Your Witness

To defend a deposition, your primary jobs will be to (1) prepare the witness and (2) state objections on the record at the deposition. Much of your work is done by the time you start the deposition, because ensuring that your witness is prepared often determines the deposition proceedings. Below is a step by step guide to prepare your witness. More information on objections to make on the record during deposition are found here.Checklist

1. Comfort the witness. Many witnesses will be worried about the process, especially where the witness is not a corporate deponent. Let them know that this is a frequent occurrence, and that the other side just wants to ask a few questions. Break the ice by telling them a few stories about much more interesting or juicy depositions you have been involved in (ensuring that you don't reveal any privileged client information).
2. Explain the concept of a deposition, and the setup of the room. Give a background on opposing counsel's demeanor.
3. The purpose of the deposition is for the opposing party to get facts for their case, to tie you down as a witness, and get admissions or statements. The number one goal is to tell the truth. Explain that there will not be any negative consequences as long as you tell the truth.
4. The deposition is not a conversation. It is like a tennis match. The attorney asks a question. The ball should bounce a few times. Then, the witness will answer.
5. Speak with your own words. The witness has the right to speak with their own words, and do not have to swallow opposing counsel's words. Speak your truth with your own words.
6. Don't Answer A Question You Don't Understand. Make sure you understand the question. Repeat the question to your self before you open your mouth to answer. The witness should think about the question to determine whether there are any words he/she does not understand. If so, ask for clarification. That is your right.
7. Repeat the answer to yourself before you respond. Test the answer in your head. Silences are not awkward in depositions (as explained below).
8. Answer only the question asked. Build the witness' ego by telling them that you understand that they are a very helpful person, which is why they are so good at their job, but the deposition is not the place to be helpful. If the attorney asks a yes/no question, answer with yes/no, and do not embellish unless it would be misleading. A deposition is not a chance for a monologue.
9. Explain: Embrace the silence. Explain that Lawyers use silence to pressure witnesses. Don't be intimidated by silences. The deposition is just an opportunity for the other side to get information to use in their case. The less you say, the less they can ask you follow up questions on. If you have answered the question, stop talking and wait for the attorney to ask another question.
10. Explain the difference between "yes,""no,""I don't know,"and "I don't recall.
11. "Yes"and "No"mean under all circumstances, past, present and future, and all shades of gray.
12. "I don't know" means you don't know currently and you have never known.
14. "I don't recall" means you knew at some point in the past, but you do not know at the current time.
15. Listen to my objections. The ones below may make the witness think twice before answering a question:
16. Vague or Ambiguous: Do you understand all of the terms used in the question.
17. Calls for speculation: When you hear this, make sure you know the answer to the question before you answer.
19. Mischaracterizes prior testimony: Make sure the attorney is not putting words in your mouth. Is all of the statement correct, or just parts of the statement.
21. Compound: Is the question asking you one question, or two or more?
22. Explain the witness' right to take breaks, except where there is a pending question. Assuming the witness is your client, let them know you can take breaks to talk privately.
23. Tell the witness not to talk about the case with others because (1) those conversations are not privileged, and (2) it will make you look bad because it looks like you were colluding to make up an official version of the facts.
24. Follow with case specific preparation, including explaining the opposing party's theory of the case.