by Patricia N. Blair
A witness about to be deposed should be aware that questioning at deposition and trial are different. At trial, for example, the lawyer not asking the questions may have several objections, like irrelevance and hearsay, which forces a judge to decide whether the witness must answer. At deposition, however, counsel often agree that only objections to the form of the question are allowed. Only three objections - lawyer-client privilege, work product, and confidential information - can serve to instruct the witness not to answer.
The reason for this distinction is that a deposition is commonly used to gather information. Also, if the transcript shows repeated objections, a court may conclude that the witness and the lawyer were trying to block the other party from gathering information. This could negatively affect a judge reading the transcript.
Because witnesses are far more on their own at deposition than at trial, it is primarily the witness, and not the witness's lawyer, who can control information. Following are some suggestions lawyers should give witnesses before they are deposed.
Do not allow opposing counsel to set the pace for your answers. Pause several seconds after a question before beginning an answer. This pause will give you time to plan your answer and your counsel time to object, where appropriate.
Answer questions concisely. If a yes or no answer is possible, give it. Avoid overstatements. Do not volunteer information.
Do not guess what a question means. If you do not understand the question, have it rephrased - but do not give opposing counsel suggestions on how to rephrase it.
If you do not know the answer, say so. Beware of questions that include the word "probable" or that ask whether something is "possible."
Correct erroneous premises in questions before answering. Do not permit opposing counsel to unfairly characterize or summarize your answers. If they do so, correct them.
Beware of attempts to ask for the same information through different questions. This may be an attempt to confuse you or to have you give inconsistent answers.
Avoid hearsay responses. Unless you are asked specifically what you heard someone else say, state matters only within your knowledge.
Avoid dialogues with opposing counsel. You should only be answering the questions asked. You must be truthful, but there is no obligation to be helpful.
Beware of questions about the precise words used in conversations. If you do not remember the exact words, say so. If you have any doubt as to the precise words used, give the substance of the conversation as you remember it.
Try not to say, "I had nothing to do with that" or "I know nothing about that subject matter." It is better to say, "That is all I can recall" or "I have no recollection of that subject." It may be that after more thought, or after having been shown a document, you will remember something about the topic.
Read carefully all documents presented to you. Avoid offering information about a document or speculating about it.
Do not allow opposing counsel to cut you off. Say that you wish to finish your first answer before trying to answer another question.
Do not lose your temper. Testifying for any length of time is tiresome and opposing counsel will often try to take advantage of this by upsetting witnesses so that they will lose their tempers. Do not let this happen.
Do not be afraid to answer "I do not recall." Do not allow opposing counsel to intimidate you into believing that this answer is unacceptable, inappropriate or unbelievable.
Patricia N. Blair specializes in corporate litigation with the firm of Ginsburg, Feldman & Bress in Washington DC.
Copyright 1987 Association of Trial Lawyers of America. Reprinted with permission from TRIAL, May 1987.
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