You may be a party to a lawsuit (or a criminal case). Or, you may be a witness who has been subpoenaed to testify at a deposition or at a trial. The following are some of the most important deposition tips I provide to clients and witnesses who will be testifying at a deposition or a trial. If you have any questions, feel free to contact us.
These are the two most important elements of your deposition/trial testimony. At the end of the day, if you’ve testified truthfully and reasonably, you can count your testimony as a success. This doesn’t necessarily mean you’ll win your case (if you’re a party), but if you don’t testify truthfully and reasonably, you’re far more likely to lose your case or even be charged with perjury.
Truth:
The legal system functions on the assumption that people tell the truth while testifying. That’s why we take an oath to tell the truth in depositions and at trial. That’s why knowingly false testimony can subject you to prosecution for perjury.
Strategically, once you start fudging the facts, you get into trouble. You can be impeached, which means that an attorney can confront you with prior statement different than the one you’re making now. Once you stray from the truth, it can be hard to find your way back. And juries hate being lied to more than they hate almost anything else. So make it easy on yourself: honor your oath and tell the truth.
Reasonableness:
At the same time, you need to testify reasonably. A trial is a battle for the hearts and minds of the jury or the judge. Frankly, it’s more heart than mind.
Here’s an example of what I mean when I talk about testifying reasonably: You’re asked how old you are. You can say you’re 15,768,000 Minutes old, or you can say you’re 30 years old. Both are true. One is reasonable. One is clearly not. Here’s a more realistic example:
“Q. How long did it take for the ambulance to arrive?
A. I don’t know exactly.
Q. Approximately how long did it take for the ambulance to arrive?
A. I wouldn’t want to guess, and I don’t know, so I can’t answer your question.”
It is technically true the witness does not know exactly how long it took for the ambulance to arrive. But refusing to answer the question at all makes the witness seem evasive and dishonest.
So it’s imperative to remain truthful and reasonable during your testimony.
Just as you want to remain truthful during the deposition or trial, you want to make sure you understand the question being asked of you.
Carefully listen to the question before answering, and let the attorney finish asking the question before speaking.
If a question is unclear or confusing, ask for clarification. And do not answer a question that you do not know how to answer.
Similarly, if a question implies something that you do not believe is true, say so.
The classic example is, “When did you stop beating your mother?” If you didn’t beat your mother, you would respond by stating you cannot answer the question, because you never beat your mother. Or just say, “I never beat my mother.” A less provocative example: “What time did you arrive at the roller rink that day?” If you were never at the roller rink on the day in question, you can’t answer that question. So say just that: “I was never at the rink that day.” Or you can say, “Never.”
Attorneys are only allowed to ask one question at a time. Do not assume a follow up question is coming. Only answer the question that is asked of you.
Your answers should be as succinct and clear as possible. You will have the opportunity to elaborate later if necessary.
Lawyers are trained to try and elicit the answers they want for their case. They are also trained to look for dishonest or evasive answers. If they sense you are making something up or are otherwise being dishonest, they will make you pay for it.
Simply put, it’s not worth the risk to stretch the truth or outmaneuver an opposing attorney. It will almost always end up backfiring.
By telling the truth, you can answer with confidence, even if you believe the answer may paint you in a bad light. If you answer confidently, you convey that you’re not afraid of the answer. Let’s say you struck someone in self-defense. You’re asked, “You punched my client, right?” If you did punch the lawyer’s client, you answer confidently and without shame: “Yes, I did.” This conveys to the jury or the judge that you’re not afraid of the truth, and they can rely on you to play it straight. This is a huge advantage. It also shows the jury or judge that you don’t believe you did anything wrong, that your actions were fully justified.
Here’s a real-life example: My client was punched numerous times by police officers. I asked one of the officers if he punched my client. He responded that he “administered a closed fist strike.” We spent the next 5 minutes discussing the fact that there is no difference between a closed fist strike and a punch. At the end of the exchange, the officer admitted he punched my client. This had three consequences: 1) The officer’s credibility (his believability) took a hit, 2) it appeared the officer was afraid of the fact that he punched my client, making it easier to argue the officers used excessive force, and 3) we spent far more time talking about the officers punching my client than we would have if he had just said, at the beginning, “Yes, I punched him.”
If you cannot answer something 100%, but you believe it’s true, just say that.
“Q. My client suffered a broken clavicle as a result of this incident, correct?” (Assuming this is not a contested issue in the case.)
Wrong answer: “How should I know? I’m not a doctor.”
Better answer: “That’s my understanding.”
This accomplishes two things: 1) The witness retains credibility by not disputing or evading an obvious fact, but 2) does not overcommit her knowledge by personally vouching for what is essentially a medical opinion.
We all have different ideas of time and distance. When you don’t have a stopwatch or tape measure with you at the moment something happens, your perception of how long something took or how far away an object was from you can be all over the map. So when you answer the inevitable questions about time and distance, make sure to qualify your answer appropriately by saying — if true — “I’m no expert at measurements”, or something like that. Also, give a range rather than a specific figure. But again, be reasonable. The fact that you don’t know or remember exactly how far away something was does not justify a refusal to answer the question. That makes you look evasive and dishonest. You can say, “It felt like forever, but I guess it was only a minute or two,” or whatever range you want to provide. So, as discussed above, qualify your answers — don’t overcommit your knowledge or memory — and answer the question reasonably. You’re not expected to know exactly how long something took, or how far away you were from the ambulance, but people have a right to expect a reasonable estimate or range.
Some helpful phrases:
Hopefully, you’ve gone over the facts ahead of time with your attorney, so you’ll have given the matter some thought before your deposition.
Trial and deposition testimony run the risk of getting into a quick, reflexive back-and-forth question and answer session, where the witness reacts emotionally, without considering whether it is the best response. A witness may even admit a false point just to end the questioning. Prevent this by making sure you take a beat to consider the question before you begin your answer. By doing this, you can dictate the pace of the questioning. You can take some control back.
Your demeanor on the witness stand, or in the witness chair, should be consistently sincere and respectful, regardless of whether the questioning attorney is on your side or the other side, even if the attorney is being disrespectful or confrontational. You want to convey that you’re grateful to be able to tell your story, even if it is actually the last thing you want to be doing at that point.
One of the primary goals of your testimony is to have the jury or the judge see the case through your eyes—and these deposition tips can help. You want them to believe the way you’re answering questions is the way they would answer those questions. Like any good story, you want them to see themselves in you. You do this primarily by being truthful and reasonable, controlling the pace, answering confidently, and being sincere and respectful.
To help build your ideal case strategy, contact civil rights and personal injury attorney Jordan Marsh for a free consultation at (224) 220-9000, or at jordan@jmarshlaw.com.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Use of and access to this website or any of the links contained within the site do not create an attorney-client relationship between you and our office.