Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
Receiving a Notice of Deposition can feel intimidating, particularly if you have never been through the process before. Being questioned under oath in a formal setting, often by an unfamiliar attorney, is not something most people encounter in their day-to-day lives. But while the setting may feel uncomfortable at first, a deposition is not something to fear. With the right preparation and a clear understanding of your role, it is a process you can navigate with confidence.
At its core, a deposition is a formal question-and-answer session conducted under oath. The attorney asking questions is there to learn what you know and preserve your testimony for later use in the case. Your role, however, is much narrower. You are not there to advocate, persuade or tell your entire story. You are there to answer questions truthfully and carefully, one at a time. This article provides practical guidance to turn a deposition witness’s discomfort into confidence.
Preparation sets the tone
1. Work with counsel
The most important work happens before the deposition begins. If you are not already represented, it is often worthwhile to retain an attorney, even if only for the limited purpose of preparing for and attending your deposition. Spending time in advance with counsel allows you to become familiar with the process, understand the types of questions you are likely to face and address concerns before you are sitting across from an examining attorney.
2. Review the facts
Preparation also can include revisiting the facts, in certain situations. This does not mean memorizing testimony or anticipating every possible question, but it does mean reviewing key documents or events so your answers are grounded in what you actually know, without guessing or speculating. A refreshed recollection makes it easier to respond accurately and with confidence.
3. Keep the right perspective
Just as important as the substance of your preparation is your mindset. A deposition is not a conversation, and it is not an opportunity to explain everything you know. It is a structured process in which your role is limited to answering the question that has been asked — nothing more and nothing less. Keeping that perspective in mind will help you remain disciplined once the questioning begins.
Stay measured and in control
1. Tell the truth and take your time
Once the deposition begins, the most important rule is simple: Tell the truth. Because you are under oath, your testimony carries the same weight as if you were in a courtroom. Effective testimony is deliberate rather than reactive. It is always worth taking a moment to listen carefully, consider your answer and then respond. The transcript will reflect only what you say, not how quickly you said it.
2. Answer only what is asked
It is equally important to answer only the question presented. Many witnesses feel a natural urge to explain, provide context or fill silence, but a deposition is not a conversation in the ordinary sense. Your role is not to assist the examining attorney. If more information is needed, another question will follow. Keeping your answers focused is one of the most effective ways to maintain control.
3. Stay within what you know
Your testimony should be confined to what you actually know — what you saw, heard or did. There is no obligation to speculate or guess. If you do not know the answer, it is appropriate to say so. If you once knew the information but cannot recall it now, it is equally appropriate to say that you do not remember. These are not evasive responses; they are accurate ones.
4. Make a clear record and clarify when needed
Because everything you say is being recorded, clarity is essential. Your answers should be verbal, complete and easy to understand, because gestures, non-verbal utterances and shorthand responses cannot be captured in a transcript. At the same time, make sure you understand each question before answering. If a question is unclear or based on an incorrect assumption, ask that it be rephrased or clarified.
5. Stay calm and control the pace
Maintaining a calm and professional demeanor is critical, even if the questioning feels pointed or repetitive. There is no benefit to becoming defensive or argumentative. Just as importantly, you control the pace of your answers. You are not required to rush, and you should not allow yourself to be interrupted or pressured into incomplete responses.
When documents are introduced, take the time to review them before answering questions about them, rather than relying on the examiner’s description. Confirm that you recognize the document and understand it, and if something appears unfamiliar or inaccurate, say so.
A deposition may feel unfamiliar, but it is ultimately a structured process with clear expectations. When you prepare thoughtfully and approach each question with care, you place yourself in the best possible position to provide accurate and effective testimony. In the end, the most effective approach can be summed up simply: less talking, better answers.•
__________
Llewellyn is an associate for Riley Bennett Egloff LLP.
Please enable JavaScript to view this content.