focus on Litigation A Witness-Friendly Guide to Surviving a Deposition IF LAWYERS HAVE TO learn how to take depositions, clients also have to learn how to give them. This is especially true for clients who are for the first time entering the terrifying (to them, at least) world of civil litigation. To help those clients, we offer the following. And remember: this isn't just for neophyte deponents. Almost any client, no matter how litigation-savvy, could use a few helpful reminders before going into the deposition room! You should think to yourself throughout the deposition, Just answer the question. Make this your mantra, with emphasis on the word "just," and you will increase the likelihood of surviving the deposition without shooting yourself in the foot. WHAT'S A DEPOSITION? Basically, a deposition is your sworn answers to questions by lawyers for the other side. Plan on being at a conference table. You and your lawyer are on one side. Opposing counsel (and often his client) are on the other side. A court reporter sits between you and records everything everybody says. A Copyright 2004. Hogan & Hartson L.L.P. All rights reserved.
written transcript is then presented to you (generally a few weeks after the deposition is concluded). You read the transcript, note errors in transcription or perhaps other changes (if, for example, you remember something), and sign the transcript. To understand what the deposition means to a lawsuit, please remember this key idea: In a deposition, your side cannot win; it can only lose. Live Testimony Key What really counts is your live testimony at trial. That is what the judge and jury hear. Generally, your deposition will not be used at trial unless it contradicts what you say on the witness stand. This means that nothing you say at the deposition can help your side's case. It can only hurt. Don't try to convince the other side: their minds are made up. You don't have to convince your own lawyer, and the court reporter couldn't care less. The objective in a deposition is therefore merely to get through it. GUIDELINES FOR WITNESSES In a deposition, there are only two basic rules: Tell the truth and Answer the question. The second rule has several components. It is deceptively simple and the hardest to apply. Hear and Understand the Question Before you can just answer the question, you have to be sure you understand it. Sometimes lawyers ask unintelligible questions, or you just don't hear what the lawyer says. In that case, don't be embarrassed to say, I don't understand. Remember, it is not your job to decipher legal mumbo-jumbo. It is the lawyer's job to ask intelligible questions. So if you do not understand a question, say so. To paraphrase the maxim: it is better to appear foolish and ask for the question to be repeated, than to answer a question you do not understand and remove all doubt. Focus On Litigation 2
Wait for the Question You cannot answer a question until it is asked. In ordinary conversation (and well-written plays), one person starts talking before the other finishes her sentence. What is good farce is not necessarily good for a deposition. Sometimes lawyers put a tag on the end of a question that changes its whole meaning. Consider this exchange: Question: Did you meet Bill in the office on Monday morning... Answer: [interrupting] Yes. Question:... with your pants down? In the above exchange, it's unclear what you answered Yes to, and if the stenographer is not very good, the transcript may show you admitting to something (hopefully) false. So, if you don't want to be caught with your pants down, please wait to hear the whole question before you respond. Don't Guess It is your job in the deposition to testify truthfully about what you know. As far as lawyers are concerned, people can know only what they themselves see, hear, taste, touch, or smell. Everything else is an inference. Do not be ashamed to say I don't know or I don't remember, if that is the truthful answer. If you find yourself saying, I think or Probably, you are violating this rule. Don't Ramble The more you talk, the more trouble you can get into and the more you prolong the deposition by allowing the opposing counsel to ask follow-up questions. So, just answer the question. When you have done that, stop talking and wait for the next question to be asked. Some lawyers advise witnesses to answer questions Yes or No ; I do not. What is the proper yes-or-no answer to Have you stopped beating your wife? The only proper answer is a simple declarative sentence: I never beat my wife. Also, sometimes lawyers ask questions with double or triple negatives and a simple declarative sentence makes your answer clear. If asked the question, Isn't it true that you did not know Bob met with Bill until after you spoke to Bob, the answer No, may be truthful but the answer I knew Bob met with Bill before I spoke to Bob is clearer. Focus On Litigation 3
Do Not Volunteer! Just answer the question that is posed. Don't add information that isn't asked for. Don't answer some other question that the lawyer should have asked if he only knew what he were talking about. Just give the information needed to answer the question actually asked. Do not volunteer extra information. By the same token, do not add an explanation for what you did or did not do. If asked, Did you put out the garbage on Tuesday night? The answer is No, not I thought my husband was going to do that. If you give the second response, the opposing counsel will, first, prolong the deposition by asking 18 follow-up questions (like, Why did you think your husband did that? Had he done it before? Had you discussed this with him beforehand? etc.) and, second, immediately issue a notice to take your husband's deposition, too. Another kind of volunteering is to refer to notes or documents. To the question, Did you meet with Bill on April 15? the responses Yes or I don't remember are acceptable. The response That would be in my secretary's calendar is not. Just answer the question. Do not volunteer is perhaps the most important rule in a deposition. If, during the course of your deposition, you feel a sharp pain in your shin, you have probably violated this rule. Don't Argue At the deposition, you are the witness? not the lawyer. Do not argue with the lawyer on the other side. You wouldn't spar with Mike Tyson, so don't try to prove your mettle by quarreling with the opposing counsel in her ring. Just answer the question. Don't Try To Think and Hit The story is told about Yogi Berra when he was once in a batting slump. The batting coach worked with him in practice and was dismayed when Yogi struck out during his first at bat in the game. When Yogi looked dejected, the coach said, Yogi, you're not thinking about what we talked about in practice. Yogi went up to bat again some innings later and, again, he struck out. The coach again admonished Yogi, You're not thinking about what we talked about in practice. Yogi got up to bat one more time in the game and, again, struck out. He came back to the dugout thoroughly disgusted, threw Focus On Litigation 4
his bat on the ground and said to the batting coach, How can you think and hit at the same time?! Your job as a witness is to answer the questions, not to try to outwit opposing counsel by strategizing about what she is going for in her question. Trying to do so will only cause you to strike out. Follow the advice implicit in Yogi's lament: Don't try to think and hit at the same time. Just answer the question. Your Lawyer Is There To Help Although the main character in the deposition is you, your lawyer has a role and is there to help in appropriate ways. Here are some points to remember. If I Object, Stop Talking When I object to a question, it means I think there is something improper about it, especially something that may lead you to say something you don't have to say. My objection is a warning signal. Stop and listen. If necessary, ask the opposing lawyer to repeat the question to make sure you understand it. The Deposition Is Not an Ordeal During a deposition, you have a right to take a drink of water, go to the bathroom, or ask for a cup of coffee. Witnesses make mistakes when they push themselves too hard (like the pitcher who throws one pitch too many that is hit for a home run), or answer questions while in physical discomfort. If you feel you're getting tired, ask for a break. If I think you're getting tired, I'll ask for one for you. To Err Is Human You may make a mistake in a deposition and realize minutes or hours later that the answer you gave to a prior question was wrong or incomplete. If that happens, let me know during a break. We will fix it. We want to make sure your deposition is accurate. The sooner we correct errors, the better. Focus On Litigation 5
Admit Being Prepared Everyone prepares for depositions. Don't be ashamed to admit that you did, too. There's nothing wrong with your going over your testimony in advance with your lawyer. If asked what your lawyer told you to say, that's easy: Just answer the questions and tell the truth. You Are Not Alone It is generally not proper to confer with your lawyer before answering a question. But your lawyer is there for a purpose. If something about a question makes you uncomfortable if, for example, you feel you are being asked improperly to disclose confidential or privileged information it is acceptable to ask to confer with your counsel. It is better to ask to confer and discuss what your concerns are, than to divulge something unwittingly that the other side had no right to know. SOME MORE WORDS TO THE WISE With these guidelines under your belt, you will be well on your way to being ready for your deposition. A few more words of advice may keep you from falling into the traps. Don't Get Too Comfortable The lawyer on the other side of the table represents the adversary. If that lawyer is really good, she will be friendly, cordial, and likable. Do not be fooled and do not get comfortable. If you are comfortable, you may say things you should not. Horror of horrors, you may volunteer. Do not forget for a minute that a deposition is part of an adversarial process and that the other lawyer is not your friend. Take Your Time Think before you speak. If you have to bite your lower lip before responding (a la President Clinton), do it. Ironically, you will finish the deposition quicker if you just take your time. Focus On Litigation 6
Don't Be Afraid of the Question "Why?" Most people who survive grade school still get nervous when an authority figure asks them Why? They feel they are being accused and must have done something wrong. Overcome that. Remember, the question Why? can seek either a justification or an explanation. View a Why? question as asking for you to explain something. Treat Why did you do X? as equivalent to What was your reason for doing X? The same applies to the question Why not? View either question as an opportunity to put your best foot forward. Be self-confident. Be gentle. Be complete. Remember, if you give an explanation in response to a why question at trial that you didn't give at deposition, the trial testimony will look suspect. Giving a full explanation in response to a why question does not violate the rule against volunteering information. Instead, it complies with a more important rule: Answer the question. Beware of Absolutes Watch out for questions that use words like always and never. Be careful how you answer. This is where a simple declarative sentence may be the most help. Ask for the Documents Be careful about questions asking what you said in a letter, or what you read in a report and so forth. Your recollection will never be exact, especially if you haven't seen the document in a long time. If you are asked a question about the content of a document, I will probably object saying something like, Objection the document speaks for itself. But just in case I'm asleep at the switch, you should say, May I see that letter, please? If for some inexplicable reason, opposing counsel does not show you the document, your best answer is I don't recall unless you have a photographic memory and can quote the letter verbatim. Focus On Litigation 7
PRACTICE CHECKLIST FOR A Witness-Friendly Guide to Surviving a Deposition Here are some useful tips you can use to instruct your client who is about to be deposed. Remember, in a deposition, your side cannot win; it can only lose. Be sure that your client remembers to follow these rules: Tell the truth; Just answer the question; Make sure you hear and understand the question; Wait for the question don't interrupt with an answer; Don't guess at an answer; Don't ramble; Never volunteer; Don't argue with the opposing side's lawyer; Don't try to think and hit avoid trying to out-strategize the other side; Stop talking and listen if your lawyer objects; Feel free to ask for a break; If you make a mistake in giving an answer, tell your lawyer; Admit that you were prepared for the deposition; Don't get too comfortable; Take your time; Don't be afraid of the question Why? Beware of absolutes in questions; and Ask to see any document which you are questioned about. * * * For more information about the matters discussed in this article, please contact the Hogan & Hartson L.L.P. attorney with whom you work or Michael Starr, the author as listed below. Michael is a partner at the New York office of Hogan & Hartson and a member of the firm s Litigation and Labor and Employment groups. You can also go to www.hhlaw.com to contact another member of our Litigation or Labor and Employment group. If you are interested in any of our other publications, please go to http://www.hhlaw.com/site/publications/. An earlier version of this article appeared in the March 1997 issue of the Practical Litigator. Michael Starr 212-918-3638 mstarr@hhlaw.com New York www.hhlaw.com Focus On Litigation 8