system is inherently adversarial. There are winners and losers in
every case, and as risk management professionals become more
involved as witnesses or even parties in civil lawsuits, their role
in depositions is vital.
Great deposition testimony for one
party is often very bad news for another. Therefore, while the
deposing attorney may have liked your testimony and will keep his or
her promise not to bring your company into the present lawsuit,
there may be some other unhappy party who now wants to sue
The following guidelines are intended
to assist you in more effectively rendering deposition testimony and
limiting your exposure to potential lawsuits. Whether you are
already involved in a lawsuit, are a seasoned corporate witness or
believe your company is just an innocent bystander that had no
involvement in the parties’ misfortunes, these steps can help reduce
your stress and assist you in rendering accurate and truthful
Seek the Advice of
There is an old
saying in the legal profession: an attorney who represents himself
has a fool for a client. This time-tested adage rings just as true
for risk management professionals.
Whenever you are subpoenaed to testify
at a deposition, you should first seek the advice of counsel. Also,
if you have directors’ and officers’ coverage or other business
insurance, you may be required by the policy language to notify your
insurance carrier. It helps to have a second set of eyes review the
subpoena and discuss any potential liability issues that may exist,
such as how to handle your testimony regarding potentially
privileged corporate trade secrets or sensitive risk data for
It is possible that your attorney will
not need to attend your deposition, but at least you will have
received the benefit of an attorney’s analysis of your situation.
Follow the Golden
the truth. This is imperative. While telling the truth may not
necessarily limit your company’s exposure to a lawsuit, lying or
playing fast and loose with the truth will undoubtedly increase your
company’s potential exposure.
Simply telling the truth is not
always enough. It is essential for you to understand the
purpose of a deposition and the relevance of your responses to the
ongoing litigation. The reasons for your deposition may be numerous.
Maybe you signed the lease on a building that now has mold claims.
Perhaps you hired the property manager, purchased the property
insurance or took the incident reports at the property. Your
deposition may therefore be part of an ongoing personal injury
lawsuit, a landlord-tenant dispute, a workers’ compensation claim or
even a bad faith lawsuit. Understanding the reason for your
deposition, as well as an in-depth understanding of the deposition
process, will enable you to testify truthfully and intelligently.
Your Deposition Can Only Hurt
A deposition is
taken for several reasons; it is therefore important to realize what
a deposition is not. A deposition is not taken to exonerate the
person or corporation being deposed. Simply put, your deposition can
only hurt you.
The first reason you are deposed is to
learn your version of the facts—that is, to learn what you will
testify to at the trial if called as a witness. This will enable the
deposing attorney to prepare his or her case for trial. The second
reason is to develop impeachment evidence and admissions against
your company’s interest. The attorney will attempt to elicit
testimony favorable to his or her client, which may be damaging to
you and your company. If your answers are materially different at
the trial, the attorney will read back portions of your deposition
testimony and try to impeach you.
Most important, a deposition is not
your chance to explain your side of the story. All too often, as a
defendant or a potential target in a lawsuit, you will attempt to
convince the other side that its case has no merit. You may be eager
to explain the lack of any prior similar claims or the exemplary
safety guidelines that have been implemented by your company. Stop.
You will have an opportunity to explain your story at the trial: a
deposition is not the time or the place.
At the trial, your attorney will ask
you questions to bring out your testimony in a favorable light.
While it may be frustrating to hold back at the deposition stage of
litigation, it is essential for a successful deposition and
favorable resolution of your involvement in the lawsuit.
Understanding the Deposition
Struggle. A deposition is
taken in an informal setting. It is usually in an attorney’s
conference room. There is no judge. There is plenty of coffee and
water to drink. The attorneys may even be very friendly. Do not be
At the outset of a deposition, the
examining attorney will attempt to establish control. This can be
done in several ways. An attorney will often try to befriend you
through small talk or humor, before and during the deposition.
Remember, this is an adversarial system. The attorney is not your
friend. On the other hand, control may be established through
intimidation. If you are prepared for your deposition and are
familiar with the ins and outs of the deposition process, you will
not be intimidated.
Admonitions. Your deposition will typically begin with the
deposing attorney explaining the ground rules of a deposition to
you. These are called admonitions. If you are unfamiliar with these,
you will be relying on the attorney for an explanation—the attorney
is therefore in control. To avoid this, it is important for you to
understand the rules before the deposition begins.
The following is a typical list of
admonitions that are given by the deposing attorney at the beginning
of a deposition. After each explanation is given, the attorney will
ask if you understand:
• “The oath you have been given is the
same oath that would be given in a court of law and comes with the
same penalties of perjury.”
• “The court reporter is taking down
every word that is spoken—the reporter cannot transcribe nods or
headshakes. Also, a court reporter can only take down what is being
said by one person at a time. I therefore ask that you wait until I
finish my question before you give your answer, and I will provide
you with the same courtesy.”
• “If you do not understand a question,
please let me know. If you do answer my question, I will assume you
understood and answered the question I asked.”
• “Please do not guess in response to
my questions. I am, however, entitled to your best estimate. Do you
understand the difference between a guess and an estimate?”
• “Your testimony will be transcribed
into a booklet form. You will have the opportunity to review your
testimony and make any changes you deem appropriate. You will then
sign your deposition transcript under the penalty of perjury. If you
make any substantive changes to your testimony, however, either
myself or other counsel may comment on your changes at trial and it
may adversely effect your credibility.”
• “I therefore request you give me your
best testimony today. Is there any reason you cannot go forward with
providing your best testimony today?”
• “Are you under the influence of any
drugs, alcohol or medications that may effect your ability to
understand and respond to my questions?”
• “Do you have any questions regarding
the deposition process before we start?”
Listen to the particular admonitions
that are explained to you by the deposing attorney. Be confident,
however, that you already have an understanding of the deposition
process and are ready for the challenges that lie ahead.
will often be about an incident that happened several years ago. It
is critical to review all relevant records before your deposition.
Many professionals feel their corporate records speak for themselves
and given the amount of time that has passed, any further
recollection is impossible. Some believe not reviewing the records
will make their deposition go faster. Neither of these beliefs is
You will want to have an understanding
of the factual background giving rise to the lawsuit. If your
company is not a party to the lawsuit, call one of the deposing
attorneys and ask for a copy of the complaint. In addition to being
familiar with the actual incident, you will also want to understand
the issues in the lawsuit.
Your corporate records do not speak for
themselves. If they did, there would be no need to take your
deposition. In many instances, the attorney has already reviewed
your company’s records prior to the deposition, and has questions
about them. You want to refamiliarize yourself with these records so
you can confidently respond to—and possibly anticipate—the
attorney’s questions. Furthermore, because the attorney will be
questioning you about your records, not reviewing them will only
lengthen your deposition.
When preparing for your deposition,
stop and think who might want to sue or cross-complain against your
company. Although this should not affect the truthfulness of your
testimony, it will give you a better grasp on the agenda of those
taking your deposition. Extensive preparation and analysis of the
issues is essential to limiting your company’s potential
It is the
attorney’s responsibility to articulate intelligible questions. If
you do not understand the question, say so. It is not your
responsibility, however, to help the attorney formulate an
For instance, do not help the examiner
by saying: “Counsel, you understand that every time an accident
occurs, reports are prepared at several levels and a comprehensive
safety review is performed.” Undoubtedly, the attorney would then
ask you to explain, in detail, your company’s reporting requirements
and safety procedures. It is the attorney’s responsibility to learn
your industry’s and company’s commonly used terminology and
procedures. You are not required to educate him or her in this
Furthermore, be weary of compound
questions. If a question is too complex for you to easily consider
in your mind, it is too complex and ambiguous to answer. Remember,
you are in control. If the question contains conjunctions (“and,”
“or,” “because”), ask the attorney to rephrase or break down the
Alternatively, do not overanalyze every
question. Give the attorney’s words their literal, plain English
meaning. Having the attorney define words that are clearly
understandable to the average person will make you seem obstructive
when the testimony is read to a jury.
Think Before You
Take your time
when responding to questions. Pause after each question. This will
allow other counsel and your counsel, if present, to formulate
objections. It will also provide you with an opportunity to decide
whether you know the answer and to formulate your response.
Also, do not allow the attorney to
interrupt you. If you are not finished answering a question,
immediately advise the attorney that you have not finished.
Likewise, pacing yourself will ensure that you do not interrupt the
This all relates back to the issue of
control. Do not allow the attorney to take control of the rhythm of
the deposition. There is no time clock or deadline for your answers.
Pace yourself and remain in control.
Do Not Put Words in Your
to questions, be careful not to adopt “facts” just because the
attorney questioning you mentions them. Do not allow the attorney to
put words in your mouth. Do not accept his or her characterizations
of time, safety procedures or personalities.
Also, do not accept the attorney’s
allegedly logical inferences and deductions. Whenever a deposing
attorney is characterizing, summarizing or deducing information in
his or her questions, he or she is doing so in a light favorable to
the case. You must rephrase the question in your own words or fully
answer the question without adopting the attorney’s words. Again, if
you do not point out the errors contained within the question, it
will be assumed you adopted these purported facts and the deposition
will go forward.
Keep in mind
that every witness makes mistakes in a deposition. Some are bigger
than others. You may have just finished explaining all of the safety
procedures that your company had in place to ensure a safe
manufacturing process for your employees. Upon further reflection,
however, you realize that many of these safety features were not
implemented until after the accident that is the subject of this
All is not lost. If you realize you
have made a mistake during your deposition, the mistake should be
corrected and explained as soon as you realize it. If the mistake
only comes to your attention after the deposition, you may correct
the mistake when you sign the transcript. However, remember the
admonition that any written changes to your deposition may affect
your credibility at the trial.
“I Don’t Know” and “I Do
Not Recall” Are Acceptable Answers
All your life you have been coming up with the
right answers, be it answering questions on exams or accurately
answering questions at work. In fact, knowing the answers to
critical questions in your professional life can greatly affect your
company’s success. In a deposition, however, you do not need to have
all the answers.
It is the attorney’s intent to exhaust
your knowledge. The attorney will ask: “Is there anything else?” or
“Is there any other reason?” or “Do you have any other opinions?” Do
not try to come up with the right answer. A deposition is not a test
you have to ace. You simply want to tell the truth.
Once you have exhausted your knowledge,
do not answer “no” to the above questions. “No” is an unequivocal
denial. Rather, state: “That is all I can recall at this time,” “I
don’t presently know,” or a similar response. Leave the door open
for any later recollection that may occur prior to the trial.
“I don’t know” will often be a more
truthful response than attempting to guess or speculate at a
“correct” answer to the question. For example, “Have you ever spoken
with the plaintiff’s wife?” This is an extremely broad question. It
refers to your entire life, not just regarding this lawsuit. Without
spending the time to review your entire life, simply answering “no”
may be inaccurate. A response such as, “I do not recall meeting the
plaintiff’s wife,” or “I am not sure,” is certainly more accurate.
While your answers should be brief and to the point, be weary of
unequivocal “yes” or “no” responses to some questions.
golden rule—tell the truth. While the attorney is entitled to your
best estimate, you are not telling the truth if you guess. You are
to testify based upon your own personal knowledge. This necessarily
requires that you distinguish between the information you have heard
from others and what constitutes your own knowledge.
For instance, assume one of your risk
administrators told you she had been in the office since 8:00 a.m.
on the morning in question. You came into the office at 10:00 a.m.
Q: “What time did your administrator
come into the office that morning?”
A: “I don’t know.”
Q: “Do you have any knowledge about
when your administrator came to work?”
Q: “What is your
A: “I know she
was in the office when I arrived at 10:00 a.m.”
Q: “Do you have any other information
about when your administrator came to work?”
A: “I have no personal knowledge, but I do know
what she told me.”
Each of the above answers is accurate
and responsive to the attorney’s questions. You did not, however,
volunteer any information or guess. Speculating and guessing are not
We have a tendency to characterize our
statements and embellish them. In a deposition, such statements are
extremely detrimental. Avoid characterizing your testimony with
lead-ins such as “in all candor,” “honestly” or “to tell the truth.”
We also have a tendency to give our
state of mind when speaking in normal conversation. For instance,
when asked if you received the incident report, the answer is “yes,”
not “yes, and it seemed to be in order.” Your thoughts are to be
given only when they are specifically asked for. Also, avoid the use
of “never” or “always.” Such language can come back to haunt you.
Do Not Volunteer
Answer only the question you are asked. If
you are asked whether you had your administrator fill out a form, do
not explain when you use such a report, why your company prepares
this report or what you do with the information. None of these
things were asked for and your answer would therefore be
If the attorney wants more information,
he or she will ask the follow-up
question. Remember, this is not your opportunity to defend yourself
or explain your company’s side of the story. Volunteering
information will only lead to additional questions and prolong your
this may seem to be common sense, it is imperative that you behave
professionally at all times. You must dress professionally (e.g.,
wear a suit). You obviously should not chew gum or smoke during your
deposition. You should also refrain from any off-color humor (as
tempting as a good attorney joke may be).
While hopefully you will be cautious
when responding to deposition questions, never become combative or
argumentative in your deposition. Lawyers argue. Witnesses testify.
Answer the questions truthfully, without arguing or being difficult.
Behaving professionally will enable you
to concentrate on providing truthful testimony.
You Are Never Off the
If you are tired or not feeling well, you may, at
any time, request a recess. Asking for a break is not a sign of
weakness. Be aware, however, that whatever you say in a conversation
off the record may very well be the subject of questioning on the
Counsel may joke with you off the
record. Do not be tempted to engage in such behavior. Even more
important, never use obscenities or make ethnic slurs while
testifying. This can be extremely embarrassing and
Remember the written transcript does
not communicate sarcasm. The court reporter also does not note
laughter. Therefore, although the entire room may be laughing at
your comment, it may seem extremely rude when printed in black and
white and read to a jury several months later.
you are not represented by counsel, and are not being paid as an
expert, be weary of giving any opinion testimony. Questions
regarding standard safety procedures or other normal company
practices are of particular concern. For example, you may be asked
how long it typically takes for your employees to respond to an
accident or an emergency situation. “What do you believe would have
been a reasonable amount of time to respond to this accident?” the
lawyer may ask. Or, “In your opinion, what could have been done to
avoid this accident?” Each of these questions calls for your
opinion. Responding to such questions can be damaging to you and
your company. At the very least, never offer any unsolicited
You will be shown several documents during
your deposition. The attorney has certain objectives when showing
you these documents:
• To authenticate the document, i.e.,
the document is what it purports to be
• To determine that you
have personal knowledge regarding the document or the information in
• To learn all you know regarding
the preparation, transmittal and receipt of the
• To learn all you know regarding the information in the
If a document is important enough for
an attorney to use in questioning, you should treat it with equal
importance, scrutinizing it carefully before providing any answers.
Take your time reviewing, even if you believe you have seen it
before. Before answering any questions:
• Look at the document to see who wrote
it, who it was sent to and who else received copies.
• If you are
not included in this group of people, scan the document for
handwritten notes to determine whether they are in your handwriting
or whether the notes were directed to you.
• Look at major
subheadings on the document to assist you in deciding whether or not
you have ever seen it.
• Lastly, determine whether you have, in
fact, ever seen the document before.
If you have never seen the document,
return it to the attorney. Advise him or her that you do not recall
ever having seen it. Only read the document in detail if the
attorney then asks you to read it. Do not be rushed to finish
reading the document. You will not be able to tell the truth by only
glancing through it.
Additionally, if your subpoena does not
request you to bring any documents, do not bring any. If counsel
becomes aware of additional documents you may have during your
deposition, do not immediately agree to produce them. If the
attorney is seeking documents that were not previously subpoenaed,
ask him or her to send you a subpoena for them. This will give you
and your attorney an opportunity to review the request and make an
above-mentioned guidelines are even more critical in a videotaped
deposition, which may be shown at the trial. While being videotaped,
you must be aware that you are speaking to the judge and jury, not
just the attorneys present at the deposition. You should turn and
face the camera when responding to questions. Do not look across the
table at the questioning attorney.
You should also avoid engaging in any
distracting mannerisms, such as tapping your pen, shuffling papers
or moving a coffee cup. The deposition is being audio taped as well.
Unlike a written transcript, a jury will be able to hear the tone of
your responses on a videotape.
Know Your Role
deposition can be an intimidating process and should never be taken
lightly. Following these guidelines will help ensure that you have
testified truthfully and with confidence. You can also be confident
that your deposition testimony has effectively limited the potential
exposure of your