Receiving a subpoena or notice of deposition is often an ominous occurrence in one’s life. Having an attorney (or a room full of attorneys) probe your personal affairs and your recollections of events in front of a court reporter can understandably induce anxiety, apprehension, and even fear. To assuage some of those concerns, here is a Top Ten list of tips for deponents.
1. Prepare for the testimony
While it is counter-productive to allow one’s anxiety to crescendo to the point of being debilitating, it is important to take the deposition process seriously. The first step to a successful deposition experience is to appropriately prepare. Depending upon the particular circumstances, proper preparations may include myriad considerations such as:
- Retaining legal counsel.
- Meeting with legal counsel at least a day or more prior to the deposition.
- Reviewing relevant documents to refresh your recollection.
- Getting a good night’s rest before the deposition.
- Having something to eat and drink before the deposition.
- Taking medications as directed by a physician.
- Making child care arrangements.
- Notifying your employer of the deposition.
- Leaving all notes, documents, and other materials at home (unless the subpoena or notice requires the production of documents).
- Turning your cellular device off or leaving the cellular device in your vehicle.
- Appearing at the deposition in a clean, neat, professional manner.
2. Provide truthful testimony
Upon the commencement of a deposition, the witness will be required to swear an oath that he or she will provide truthful testimony. Providing false testimony in a deposition can lead to criminal perjury charges, severe court sanctions, and loss of credibility in the eyes of the judge and jury. Even if you perceive the response to be embarrassing or damaging in some fashion, the only reasonable, responsible path is to provide truthful testimony.
3. Do not guess or speculate
Very few people are endowed with eidetic minds, therefore, a person cannot be expected to have perfect recall of every name, date and event. Memories fade with the passage of time. Because people often want to hold themselves out as being intelligent and cooperative, there is a general reluctance to admit to not knowing a particular fact. In the world of depositions, however, it is critical to avoid guesswork or speculation. The answer, “I don’t know” is a perfectly valid, acceptable response if it is true. A good lawyer will ask follow-up questions about documents or things that might refresh your recollection or whether there are other individuals who may have better knowledge on a given topic. Under certain circumstances, estimates or ranges may be appropriate so long as the answer contains some kind of disclaimer about the lack of precision.
4. Listen to and respond to the question that was asked
One of the most common mistakes made by witnesses in depositions is failing to listen to and respond to the specific question asked by the attorney. This disconnect is caused by one or more factors. One cause of the disconnect between answer and question is a tendency in casual conversation to anticipate what the other person is about to say and to either answer before the question is completed or to mentally focus on the anticipated question without listening to the full question. Another common culprit is impatience by the witness. The robotic question and answer format is sometimes tedious, monotonous, and somewhat foreign in comparison to normal social interactions. Also, witnesses frequently hold the misconception that if they “tell their story” in one long answer the attorney will understand the situation and the limits of the witness’ knowledge which will expedite the deposition. This misconception can cause disastrous results. There is a direct correlation between the length of a witness’ answer and the number of follow-up questions. These long-winded responses also involve volunteering information that may or may not have been the subject of cross-examination. If a question can be answered with a simple “yes” or “no” that is a complete, perfectly acceptable answer. Make the cross-examining attorney work for the appropriate follow-up questions.
5. Do not divulge any privileged or confidential information
While sitting in the witness chair, a witness is often overwhelmed by the anxiety of the situation, trying to remember the facts, listening to the particular question, and other considerations that they sometimes forget to appreciate the nuances of privilege and confidentiality. A common misunderstanding about the attorney-client privilege is it is not absolute. The privilege rests with the client who, much to the chagrin of attorneys, has the ability to waive the privilege. The Florida Rules of Civil Procedure, Florida Statutes, and Florida common law recognize a variety of other privileges that should be taken into account and discussed before providing deposition testimony. Examples include journalist’s privilege, psychotherapist-patient privilege, sexual assault counselor-victim privilege, domestic violence advocate-victim privilege, husband-wife privilege, clergy privilege, accountant-client privilege and trade secrets privilege. Waiver of these privileges is inadvisable without consulting an attorney first.
Aside from applicable privileges, witnesses should also consider whether the likely subject of the deposition will involve disclosure of confidential information such as personal identifiable information (dates of birth, Social Security Numbers), trade secrets (a non-public formula, pattern, compilation, program, device, method, technique, or process that has some economic value), or information deemed confidential by a court order or agreement. Disclosure of such confidential information may subject the witness (or his or her employer) to sanctions, give rise to a separate cause of action, or harm his or her business.
6. Review exhibits
It is commonplace for attorneys to ask witnesses in deposition to authenticate, describe events leading up to, explain the purpose behind, and elaborate upon the impact of certain documents. Even if the witness is familiar with the document, it is important to review the document again to refresh recollection, determine whether it is the same version of the document of which he or she is familiar, and allow the witness time to gather his or her thoughts. When pressed for time, attorneys may launch into a barrage of questions before the witness has had an ample opportunity to review and familiarize himself or herself with the exhibit. The witness should politely ask the attorney for time to review the exhibit before answering any questions.
7. Pause before answering
Allowing a brief pause before responding to a question serves multiple purposes. First, it will afford your attorney time to lodge an objection to the question. Second, the pause will allow you to think about the question and formulate an intelligent, appropriate response. Third, the question may include false assumptions, unfair adjectives, or argumentative characterizations that will need to be addressed in the response. Fourth, attorneys sometimes ask bad questions that are confusing, compound (two or more questions lumped together), or ambiguous, which may require you to ask the cross-examining attorney to rephrase the question. Fifth, you may have been distracted or did not hear the question properly the first time around.
8. Keep a professional, polite tone
Whether the deposition is just being transcribed or being videotaped, it is important to remain calm and professional. A judge, jury, various attorneys, experts, and possibly even members of the press may read or view your testimony and witnesses who are able to remain stoic in the face of difficult questions are generally viewed as being more forthright and honest. Arguing with the cross-examining attorney, being overly evasive, or being generally obstinate when responding to questions will serve no useful purpose and will cause you to appear less likable and less credible. Unfortunately, some attorneys take an aggressive approach to cross-examining witnesses, but you should not take the bait.
9. Take breaks
Depositions are not designed to become endurance tests. Mental and physical fatigue are common by-products of depositions, and it is important to remain alert and focused. Asking for a break every hour or two in deposition for a mental health break, to use the restroom, to make a telephone call, to check in with work, or to get something to eat or drink is fairly customary and most attorneys will accommodate such requests so long as the attorney is not in the middle of a question or particular topic. Asking for a break during the middle of a particularly challenging line of questioning will raise suspicions about the motive behind the break and should generally be avoided.
10. Refrain from cracking jokes
As discussed above, the witness should maintain a professional, business-like tone throughout the deposition even if one or more of the attorneys attempts to lighten the mood with laughter, jokes, or off-hand remarks. The judiciary and jury pools are comprised of people with varying backgrounds, races, religions, beliefs, etc., and a seemingly harmless comment, example of sarcasm, or joke could easily become misconstrued and might even be considered offensive. Alienating the judge or members of the jury with an unpleasant tone or offensive joke will inevitably damage the likability and credibility of the witness.