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- Listen to the question. You should concentrate on every word and wait until you hear the last word of the question before you start your answer. You should also wait five to ten seconds before giving your answer, even if the answer is one that comes to your mind immediately, because this will give your attorney the opportunity to raise an objection and will assure that you think your answer through carefully. What may seem to be a long pause to you will not be discernible upon a reading of the transcript.
- Be sure you hear the question. If the government attorney drops his voice or someone coughs, or there is a noise outside and you miss a word or two, state that you did not hear the question. Do this even if you are almost certain that you know what word was missed.
- Be sure that you understand the question. Sometimes a question will be so long or so convoluted that you do not know what you are being asked except that it concerns a particular subject. You may be tempted to answer by saying something about that subject in the hope that the lawyer will then go on to something else. Do not do that. Just say that you do not understand the question.
- Answer the question. After you have listened to, heard, and understood the question, then answer the question. It is important for you to remember that your answer should respond precisely to the question that was asked. You should not attempt to answer a question that you feel the attorney meant to ask, or that you would like to answer. Your answers should be short and to the point. In 90% of the cases you will find that you can answer the question with “Yes,” “No,” “I don’t know,” or “I don’t remember.”
What each of us has learned during the educational process of taking tests in high school or college applies to depositions, as well. Answer what you are asked. If the question begins “Who,” your answer should be a name; if “Where,” a place; if “When,” a date; and so on. If you do not know or do not remember, say that. You do not get extra points by guessing. You do not get extra points for giving perfectly clear and complete answers. Normally, if there is some ambiguity in your answer, that will be a problem for the opposing party, not for you.
Sometimes, after you give your answer, there will be silence. The other lawyer may be thinking about how to word his next question. Silence sometimes makes a witness uncomfortable. You may be tempted to fill the silence with words. Do not do that. Keep quiet and wait.
Do you best to overcome the natural tendency to display your knowledge by thinking out loud, by explaining “why,” or by anticipating the next logical question and answering it.
- Stick to truthful answers. You may hear the same question more than once. If your original answer was accurate, stick to it. The fact that the other lawyer keeps coming back to the question does not mean that you are answering improperly. You must give the facts as you know them. If you give them right the first time, stick to your answer.
- Tell the truth. You must always follow that rule. You should not interpret anything else that I have said to you to be at odds with that rule. The truth is what the witness knows, not what he believes. The truth is what he saw, smelled, heard, touched, or tasted. You should be mindful of the distinction between what you know, and what you have found out informally from others.
- Don’t gratuitously reveal other sources of information. Don’t say that there are other documents, photos, or records at your house, business or attorney’s office which can assist your response. The result if you do say so may be that such records will have to be produced, or that you will be deposed further.
- Don’t reveal your inner thoughts. Don’t say “I thought, believed, wanted, figured, hoped,” There is no advantage in explaining your conduct to your adversary and if you volunteer it, it may not withstand careful dissection.
- Avoid being led. Do not adopt or accept language (especially adjectives) used by the examiner simply because you can’t immediately call to mind the appropriate description.
- Avoid use of the words “never” and “always.” Don’t commit yourself to a position broader than that called for. There is no advantage to it.
- Avoid humor. It will appear very inappropriate when read in the transcript.
- Avoid the “exclusivity trap.” When an examiner establishes that your recollection is fully and completely probed, then any later changes or modifications will be difficult to accept. You should somehow try to “leave the door open” to later additions without their necessarily being inconsistent with your deposition testimony. When you are asked if anything further happened or was said, a reasonable and effective answer is: “At this time, I cannot recall anything further, although I am sure that there were other conversations or events.”
Updated: June 21, 2018
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