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How to Successfully Testify at Your Deposition

by Bob Tyson

The legal 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 you.

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 testimony.    

Seek the Advice of Counsel
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 similar incidents.

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 Rule(s)
Always tell 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 You
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 Process
Power 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 fooled.

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.

Be Prepared
A deposition 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 true.

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 exposure.

Understand the Question
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 understandable question.

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 endeavor.

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 question.

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 Speak
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 attorney’s questions.

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 Mouth
When responding 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.

Mistakes Happen
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 lawsuit.

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.

Do Not Guess
Remember the 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. that day.

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?”
A: “Yes.”

Q: “What is your understanding?”
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 truthful.      

Only the Facts
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 Information
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 unsolicited.

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 deposition.

Act Professionally
While 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 Record
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 record.

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 damaging.

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.

Expert Opinions
If 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 opinions.

Handling of Documents
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 the document
• To learn all you know regarding the  preparation, transmittal and receipt of the document
• To learn all you know regarding the information in the document

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 appropriate response.

Videotaped Depositions
The 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
A 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 company.

Reprinted from Risk Management Magazine.
Copyright Risk Management Society Publishing, Inc. All rights reserved.