Deposition Preparation, Part 4: Twelve Commandments for Deponents

If you represent the witness, you have to prepare yourself and your client.

To begin with, when appropriate take time to explain the case as a whole and the various theories of all parties to the witness. A full explanation will help the deponent understand what the case is about and respond to the questions in an intelligent and comfortable manner. (Beware that what you say may be discoverable during the deposition by opposing counsel, particularly if the witness is not the client. For example, you could inadvertently waive work-product protection by sharing your notes with a witness.)

Secondly, explain in detail the subjects on which the witness is most likely to be questioned. In that vein, be sure to give and discuss with the witness documents he is likely to see, paying close attention to those he may have authored or received.

During the prep meetings, encourage him to ask questions about what he may expect. It’s also a good idea to engage the witness in a ‘dry run’ or practice session. For the deposition itself there are many pointers to offer your client, though here are twelve commandments that come to mind:

1) “Dress appropriately.”
2) “Always tell the truth.” The deponent has a moral and legal obligation to respond to questions truthfully. Strategically, truthful responses prevent opposing counsel from utilizing psychological techniques to intimidate the client or lull him into a false sense of confidence. Truthful responses will also allow deponents to be more comfortable during the proceedings. If President Clinton had told the truth in his depositions, history might have been different.
3) “Carefully listen to the question posed.”
4) “Pause, think and reflect before answering a question.” Hesitating or reflecting before answering will not only allow the witness time to gather his thoughts but also will allow you, the lawyer, to hear the question and interpose an objection if necessary. (On that point, be sure to explain to your client the two types of objections, form and substance, and the consequences of each.)
5) “You are only expected to respond to a question based upon your own knowledge.”
6) “Do not accept characterizations or summaries suggested by the attorney questioning you unless you are satisfied they are accurate.” Frequently during the deposition, opposing counsel will attempt to summarize what has previously been stated or the content of a document, and such summaries can be flawed with inaccuracies. Encourage your client to consider very carefully any summary before acknowledging its accuracy.
7) “Answer as briefly as possible.” Many witnesses complain about the length of the deposition, but they contribute to the length by giving verbose testimony.
8) “Listen to your attorney during the deposition.” By watching and observing his attorney, the witness can learn a great deal. He should always allow you, the lawyer, to play the lead role.
9) “Do not respond to questions about documents unless you are entirely familiar with the content of the entire document.” It may be necessary that the witness read documents in question before responding.
10) “Always maintain a businesslike demeanor during the deposition.” Your client should maintain this demeanor even if opposing counsel becomes abusive or exceedingly polite or courteous. Extensive off-the-record discussion and casual conversation should be avoided.
11) “Always remain relaxed and calm during the deposition.” The deponent should try to control the pace of the deposition and feel free to confer with you, his attorney, or request a break.
12) “If you realize that you have made a mistake in your answers, do not become nervous, but mention this to your attorney after opposing counsel questions you.” The deponent’s lawyer has the opportunity to ask questions that could clarify any points the witness is concerned about.

This kind of advice will go a long way in helping the client get through the deposition without damaging his interests, especially if he has never been deposed before.