Cool as a Cucumber[1]: HOW TO TESTIFY SUCCESSFULLY AT YOUR DEPOSITION OR IN COURT IN A DOMESTIC RELATIONS CASE
[1] This phrase (c. 1732) derives from ancient folk knowledge confirmed by science in 1970: the interior temperature of a field cucumber on a warm day is 20 degrees cooler than the air temperature.
HOW TO TESTIFY SUCCESSFULLY AT YOUR DEPOSITION OR IN COURT IN A DOMESTIC RELATIONS CASE
When it comes to testifying, follow the Golden Rules:
- Always tell the truth.
- Simply telling the truth is not enough sometimes. You must understand the purpose of testimony, and the relevance to the litigation of your responses you give when testifying.
- Your deposition/testimony can rarely, if ever, do anything but hurt you.
- Be prepared.
- Before you answer, hear the question, understand the question.
- Think about the—truthful—response to the question before you answer or speak.
- Do not volunteer information; answer only the question asked.
- Do not let opposing counsel put words in your mouth.
- Mistakes happen; don’t let them send you into a tailspin.
- “I don’t know” and “I do not recall” are acceptable answers—when they are true.
- Do not guess, speculate, or surmise in responding to a question. You testify as to what you know, not what you don’t know, and guessing is, by definition, not knowing.
- Stick to the facts (See Rule 11 above).
- Behave professionally and maturely.
- You are never “off the record”.
- Know your role in the process (See Rules 2 and 3 above).
I have observed testimony that made the difference between winning and losing the case. This means I’ve experienced testimony that snatched victory from the jaws of defeat in a weak case, and I’ve also experienced testimony that resulted in losing a case my clients could have or should have won.
The following principle applies to you, whether you like it or not: the overwhelming majority of people are not inherently talented testifiers. Testifying successfully under oath is somewhat counterintuitive. Learn how it works before you do it for real, for all the marbles.
He or she who believes that he/she is a natural at testifying is either an extraordinarily rare specimen or a fool. ‘Don’t know which kind do you think you are? Why leave it to chance? You can’t afford to. You only get one opportunity to testify.
There is very good news, however; learning how to testify properly and effectively is not hard to understand and not hard to do. I am literally begging you to read all of this booklet carefully (make notes in the margins, highlight key parts, know this stuff cold), so that you know what proper and effective testify is AND how to testify properly and effectively yourself. Ignore this advice at your and your case’s peril. Follow this advice to your case’s guaranteed benefit.
FOLLOW THE GOLDEN RULES
- Always tell the truth.
While telling the truth may not necessarily limit your exposure or benefit every aspect of your case, lying or playing fast and loose with the truth will undoubtedly increase your potential exposure and almost certainly damage your credibility and by extension, your case.
Examples:
Suppose you are seeking a divorce on the basis of, among other things, your wife committing serial adultery. Suppose also that during a heated argument you did in fact call your wife a slut. Now imagine that you are being questioned on the witness stand:
Right Way:
Question: “Did you call your wife a slut?”
Answer: “Yes.”
Wrong Way:
Question: “Did you call your wife a slut?”
Answer: “No.”
By the way, calling your adulterous spouse a philanderer or a slut really has very little bearing on a divorce case. Even if you feel embarrassed by having to answer yes to the question above, it’s better to be honest than to lie. It’s necessary to be honest. Lying is not an option.
But you might think, “Aha, I’ve nothing to lose. It’s his/her word against mine!” But then this happens:
Right Way:
Question: “Did you call your wife a slut?”
Answer: “Yes.”
Wrong Way:
Question: “Did you call your wife a slut?”
Answer: “No.”
Question: “Were you aware your wife was recording the argument on her smartphone in your front yard. . . and were you aware of the busload of nuns with camcorders whose ride broke down just outside your house at that moment could overhear the whole argument too?”
Honesty is the best policy. It’s the only policy. Truth may hurt, but lies hurt you even more.
- Simply telling the truth is not enough sometimes.
You must understand the purpose of testimony, and the relevance to the litigation of your responses you give when testifying. The reasons for taking your deposition or being questioned on the witness stand may be numerous. Understanding the reason for you being questioned, as well as deeper understanding of the process, will enable you to testify both truthfully and intelligently. Read on to understand the purposes of testimony in a court case. They are not what you think.
- Your Deposition/Testimony Can Rarely, If Ever, Do Anything But Hurt You
Consider what that heading you just read means: your deposition can only hurt you. A deposition is taken for several reasons; it is important to realize what a deposition is and is not.
A deposition/testimony is not taken to exonerate the person being deposed/questioned.
It is not your opportunity to “tell your side of the story,” “to get your licks in,” or “to set the record straight.”
Simply put, your testimony can only hurt you. So do your best to (honestly) minimize the damage.
Repeat: your deposition/testimony can rarely, if ever, do anything but hurt you. This means you don’t try to make your deposition your personal soapbox. Don’t even think about it. Don’t. I really mean it.
Why You Are Deposed
- One reason you are deposed/questioned 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 better prepare his or her case for trial.
- Another reason is to develop impeachment[1] evidence and admissions against your interest. The attorney deposing (that’s the term for questioning you in your deposition) you will attempt to elicit testimony favorable to his or her client, which is thus damaging to you. If your answers to the same questions you are asked in your deposition are materially different from those questions when asked at the trial, the attorney will read back portions of your deposition testimony taken previously and try to impeach you (that is to say, make you out to be a liar).
- Most important, a deposition and/or being questioned at trial is not your chance to explain your side of the story. All too often, as a participant in a lawsuit, you will attempt to convince the opposing party or lawyer that his/her case has no merit. You may be eager to explain your actions or explain why the opposing party is in the wrong.
!!Stop!!
Slap your own face for me here and say to yourself, “Snap out of it!”
A deposition is not the time or the place to tell your side of the story or set the record straight as you see it. Repeat that to yourself orally: a deposition is not the time or the place to tell your side of the story or set the record straight as you see it. People who disregard this sage advice are too clever by half, and they get burned. Ignore this advice at your peril. You have been more than fairly warned.
At the trial, your attorney will ask you questions to bring out your testimony in a favorable light. While it may be frustrating to restrain yourself from “telling your side of the story” or “setting the record straight” at the deposition stage of litigation, it is essential for a successful deposition and favorable resolution of your involvement in the lawsuit.
Think of it this way too: the deposition is for the judge, not for you. Give the judge what the judges needs to know, not what you want to yammer about it.
The Deposition Process
A deposition is taken in an informal setting.
It is usually in an attorney’s conference room.
There is no judge present.
Your attorney will be with you while you are deposed to make objections to any improperly posed questions.
There is plenty of water to drink. If you need to get up to use the restroom, you may, without having to ask permission. You simply say to the attorney questioning you, “I need to be excused to use the restroom.”
The attorney (or attorneys) questioning you may appear to be very friendly. Do not be fooled. The opposing attorney is looking for chinks in your armor to stab you in the soft underbelly, no matter how charmingly he may slip in the knife.
Power Struggle. At the outset of a deposition/questioning, 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. Do not be fooled. Remember, this is an adversarial system. The opposing attorney is never your friend. Never.
Another way the attorney questioning you may attempt to establish control is through intimidation. If you are prepared for your deposition/questioning and are familiar with the ins and outs of the process, you will not be intimidated. If you are unsure about any aspect of your deposition/testimony, then please, for your own sake, talk to your attorney in advance! Once you’re in the deposition hot seat, the time for preparation has passed, for good.
Don’t worry about looking foolish or unsophisticated with your attorney—your attorney’s purpose is to educate you and polish you up. Use the help. Now! No question is too silly to ask your attorney, and no silly question is more damaging than the one unasked, when it could have done you some good before you’re in the hot seat and have nowhere to turn. Questions unasked are questions unanswered; that is to say they are unanswered until the opposing lawyer asks them and you look like a deer in the headlights, or worse. Ask in advance your stupid and embarrassing questions of someone who’s looking out for you, please.
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 opposing 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 often given by the deposing attorney at the beginning of a deposition. After each explanation is given, the attorney will likely 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.”
- “Your attorney may make objections to my questions in the course of your deposition, but as you can see, we have no judge here to sustain or overrule objections, so, except in rare situations, you will need to answer each of my questions, regardless of whether your attorney objects to them or not.”
- “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 your attorney or other counsel may comment on your changes at trial and it may adversely affect 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 affect 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 opposing attorney. Be confident, however, that because you read this document in your hands before your deposition (and well before your deposition, not in the car on the drive over), you already have an understanding of the deposition process and are ready for the challenges that lie ahead.
- Be prepared.
Being deposed or being questioned in court will often be about an incident or incidents that happened a long time ago. It is critical that you review all relevant records beforehand.
You will want to have an understanding of the factual background giving rise to the lawsuit. In addition to being familiar with specific incidents, you will also want to understand the issues in the lawsuit, i.e., what are you fighting over?
Right Way:
You review your expenses and the documentation you have in support of these expenses weeks before your deposition or court date, so you know—and can show from the documents—that you need $1,300 in alimony.
Question: “So how much do you need to meet your monthly needs?”
Answer: “$1,300.”
Question: “Oh, really?”
Answer: “Yes.”
Question: “And how do you know that?”
Answer: “You have my receipts, credit card, and bank statements in my Financial Declaration which show my personal monthly expenses are $2,560 per month, and I net $1,260 per month from my job, so the difference is $1,300.”
Wrong Way:
‘Turns out you need $1,300 in alimony, but you don’t review your expenses or their supporting documentation, so you have no idea it’s that much. And then you are asked, under oath:
Attorney: “So how much do you need to meet your monthly needs?”
You answer: “Oh, I’d say around $800 or $900.”
Attorney: “OK, thank you.”
Video recorded depositions (also known as “sound-and-visual” recordings)
The guidelines in this booklet are even more critical in a video recorded deposition, which may be shown at the trial. While being videotaped, you must be aware that you are speaking to the judge, not just the attorneys present at the deposition. You should turn and face the camera when responding to questions, don’t look across the table at the questioning attorney.
You should also avoid engaging in any distracting mannerisms, such as shifting in your seat, gazing helplessly at your attorney, tapping your pen, twisting in your chair, shuffling papers or fussing with your coffee cup. Whether you feel happy and relaxed or not, look that way on camera. No one likes a tense grump or a creepy witness. So sit up straight. Dress Sharp. Get a shave and a haircut. Look alive. Look appealing. The deposition is being audio taped as well. Unlike a written transcript, a jury will be able to see and hear the tone of your responses in a video recorded deposition.
- Before you answer, hear the question, understand the question.
It is the questioning attorney’s responsibility to articulate intelligible questions. If you do not understand the question, say so. DO NOT allow your pride to stand in the way of understanding a question. Don’t let your fear of looking foolish cause you to answer a question you don’t understand—that will guarantee you look foolish.
It is not your responsibility, however, to help the attorney formulate an understandable question. Do not answer a question that isn’t asked. Do not ask the attorney, “Did you mean to ask ________?”—that’s suicide.
Right Way:
Question: “Do you have any children?”
Answer: “Yes.”
Question: “How many?”
Answer: “Two.”
Question: “Boys, girls?”
Answer: “Two boys.”
Question: “Are they minors?”
Answer: “One of them is.”
[You hear the next question as possibly meaning] “Do you know who your sons’ teachers are?”; [but it was meant as] “Do you know who your youngest son’s teachers are?” You know the names of your youngest son’s elementary school teachers, but you have no idea who your adult son’s college professors are.
Question: “Do you know who your sons’ teachers are?”
Answer: “Whose teachers?”
Question: “Your youngest son’s, Jimmy’s teachers.”
Answer: “Yes.”
Question: “What are their names?”
Answer: “Mrs. Brown, Ms. Tuttle, Mr. Cheever, and Mrs. Watson.”
Wrong Way:
Question: “Do you have any children?”
Answer: “Yes.”
Question: “How many?”
Answer: “Two.”
Question: “Boys, girls?”
Answer: “Two boys.”
Question: “Are they minors?”
Answer: “One of them is.”
Question: [you hear it as] “Do you know who your sons’ teachers are?,” but it was meant as “Do you know who your youngest son’s teachers are?” You know the names of your youngest son’s elementary school teachers, but you have no idea who your adult son’s college professors are.
Question: “Do you know who your sons’ teachers are?”
Answer: “No.”
It is the questioning attorney’s responsibility to learn the facts. You are not required to volunteer this information without first being asked specifically, by him, to educate him in this endeavor. Even if the attorney acts (and it is acting) frustrated that you “aren’t being cooperative,” do not volunteer information that is not sought by a specific question. If you are one of those who squirms during awkward silences in a conversation, DON’T speak up just to fill the silence. Attorneys often try to get you to speak that way. Keep your mouth shut until an actual question is posed.
Watch out for compound questions. Compound questions are two questions asked in the same sentence.
EXAMPLES:
“Did you or your partner steal the money?”
“Tell me, Mr. Smith, how your wife managed to place the house up for sale without your knowledge and how she closed on the sale without you allegedly being present.”
Compound questions are scary because you may want to answer one part of the question with a “Yes” and the other part with a “No,” but if all you do is answer with a single “No” or with a single “Yes,” the court might think you were answering “No” or “Yes” to both parts of the question. Point out when you are asked a compound question by saying, then ask the attorney to break the question into two separate questions that you answer separately. It’s your right.
Right Way:
Question: “Did you withdraw all of the money from the joint account without your wife’s consent.”
Answer: “That’s multiple questions in one. Please break them up.”
Question: “If you insist. First, how did you manage to withdraw all of the money from the joint account?”
Answer: “That’s still two questions.”
Question: “Fine. Did you withdraw all of the money?”
Answer: “Yes.”
Question: “Was it a joint account?”
Answer: “No.”
Question: “Whose account is it?”
Answer: “Mine. It’s an account I opened prior to our marriage.”
Wrong Way:
Question: “Did you withdraw all of the money from the joint account without your wife’s consent.”
If you answer with “Yes,” the judge might think you withdrew all the money from a joint account, which is not true. You look like a liar.
If you answer with “No,” the judge might think you’re claiming that you did not withdraw all the money, when in fact you did. You look like a liar.
If a question is too complex or ambiguous for you to easily understand, it is too complex or 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. If the question uses words you don’t understand, say so.
If you’re self-conscious about looking stupid, get over yourself fast. One of a lawyer’s most powerful weapons is the witness’s own pride and/or insecurity.
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 evasive or obstructive when the testimony is read by the judge. Asking the attorney to repeat a question as a ruse for stalling is pretty obvious too, so don’t do that either. If you need time to answer a question, take a brief, reasonable pause and then answer.
Do not overanalyze every question.
Right Way (What President Clinton should have done):
Question: “The statement that there was no sex of any kind in any manner shape or form with President Clinton was an utterly false statement, is that correct?”
Answer: “Yes.”
Wrong Way:
(from the actual deposition of President Bill Clinton)
Question: “The statement that there was no sex of any kind in any manner shape or form with President Clinton was an utterly false statement, is that correct?”
Answer: “It depends upon what the meaning of the word ‘is’ is. If ‘is’ means ‘is and never has been,’ that’s one thing, if it means ‘there is none,’ that’s a completely true statement.”*
*You’ll find this exchange from the deposition of President Clinton under the dictionary definition of “too clever by half.” My friend, regardless of your political affiliations, if you believe that the President’s answer did his case any favors, then you are likely in trouble when it comes time for your testimony.
Don’t be too eager to anticipate questions from the attorney deposing you. Anticipating questions you think may be asked could result in you divulging information you would never have otherwise been asked to divulge.
Do:
Question: “Did you spank your son?”
Answer: “Yes.”
Question: “OK, I’d like to move on why you want the family dog awarded to you . . .”
Do:
Question: “Did you spank your son?”
Answer: “Yes.”
Question: “OK, I’d like to move on why you want the family dog awarded to you . . .”
Repeat this orally to yourself: Do not overanalyze every question or be too eager to anticipate questions from the attorney deposing you.
- Think about the—truthful—response to the question before you answer or speak.
What’s that again? Pause and think before you speak.
Take your time when responding to questions.
Pause for about one, maybe two, full seconds (i.e., “one thousand one, one thousand two”) after each question. Seriously. This has many benefits:
1) It allows your attorney to formulate objections to any improper question.
2) It provides you with an opportunity to decide whether you know the answer and to determine how you will respond.
Don’t:
Question: “Do you consider lying bad behavior in a child?”
Answer: “Yes.”
Question: “And do you think it appropriate to punish a child for lying–
Answer: [piping up while the lawyer is in mid-sentence] “Absolutely!”
Question: –by whipping him with an electrical cord?
Do:
Question: “Do you consider lying bad behavior in a child?”
Answer: “Yes.”
Question: “And do you think it appropriate to punish a child for lying by whipping him with an electrical cord?
Answer: “No.”
Do not try to talk over the attorney questioning you. It makes you look extraordinarily argumentative and rude, and it can create confusion (see above).
Remember: while you are not in control of the questions asked of you, you are in control of answering those questions. Don’t let the opposing attorney bully you into making snap responses (and he or she will try, oh how they’ll try).
Do not allow the attorney to interrupt you as you speak. If you are not finished answering a question, immediately (and kindly, calmly) advise the attorney that you have not finished (still, try to be brief in your answers—most questions you are asked should be answerable with yes, no, I don’t know, or “I don’t understand, please rephrase”). Likewise, pacing yourself will ensure that you do not interrupt the opposing attorney’s questions.
Do not antagonize or insult the attorney questioning you. It usually backfires. Do not argue with the attorney questioning you. It makes you look defensive, foolish, and dishonest.
Don’t:
Question: “Didn’t you think you were overreacting by talking to your son in that way?”
Answer: “I don’t know, I didn’t study psychology, did you, Mr. Know-It-All?”
Response from lawyer: “Actually, yes, I did, when obtaining my master’s degree from Harvard.”
Do:
Question: “Didn’t you think you were overreacting by talking to your son in that way?”
Answer: “I don’t know.”
or: “No.”
or: “Yes.”
And do not look to be insulted by every word that issues from the mouth of the attorney questioning you. The purpose of many, even most, questions, is to expose weaknesses in you and in your case. I know the pressure is on you, but losing your cool only makes you look bad and does not make you look like the martyr you feel you are.
This all relates back to the issue of control. Do not allow the attorney to take control of the rhythm of the questioning. There is no time clock or deadline for your answers. Pace yourself and remain in control of yourself.
- Do Not Volunteer Information; answer only the question you are asked.
If you are asked whether you spanked your son, answer “yes” if you did, “no” if you didn’t. If you can’t remember whether you spanked him, say so. That’s it. Do not explain when you spank children, why you spank, or what behavior is deserving of a spanking. None of those things were asked, and so if you speak to these subjects you end up divulging unsolicited information the attorney questioning you would never otherwise have thought to ask you.
Do:
Question: “Did you spank your son?”
Answer: “Yes.”
Don’t:
Question: “Did you spank your son?”
Answer: “Of course I did! But only four times, not the five my spouse claims. And I wasn’t drunk when I spanked him, I’d only had two beers. That boy’s lucky I didn’t beat him senseless after what he did. And if he says I whipped him with a belt, he’s lying!”
If the attorney wants more information, he or she will ask a follow-up question. You don’t need to volunteer more information. It does you no good.
Remember, this is not your opportunity to defend yourself or explain your side of the story. Volunteering information 1) risks divulging information that might never have been obtained; 2) risks having additional questions posed that might otherwise never have been asked, 3) can damage your case, and 4) prolongs your deposition.
- Do not let opposing counsel put words in your mouth.
Pay attention and be careful not to adopt “facts” just because the attorney questioning you mentions them. Don’t allow the attorney to put words in your mouth. Don’t accept his characterizations of people, events, data, and other facts.
Don’t:
Question: “So you object to your ex-husband’s handling of the situation, correct?”
Answer: “Yes.”
Question: “Why?”
Answer: “He checked our son out of school and enrolled him in a new school without my knowledge or consent.”
Question: “So it’s wrong for a parent to check a child out of school and enroll him in a new school without the other parent’s knowledge and consent, correct?”
Answer: “Correct, that’s what I just said.”
Question: “But isn’t it true that after you discovered that your ex-husband checked your son out of school and enrolled him in a different school, you checked him out and enrolled him back into the old school?”
Answer: “Well, yes.”
Question: “But didn’t you just concede that it’s wrong for a parent to check a child out of school and enroll him in a new school without the other parent’s knowledge and consent?”
Answer: “Wait, you’re twisting my words . . .”
Do:
Question: “So you object to your ex-husband’s handling of the situation, correct?”
Answer: “Yes.”
Question: “Why?”
Answer: “He checked our son out of school and enrolled him in a new school without my knowledge or consent.”
Question: “So it’s wrong for a parent to check a child out of school and enroll him in a new school without the other parent’s knowledge and consent, correct?”
Answer: “No, that is not what I said.”
Question: “Really?”
Answer: “Really.”
Question: “What did you mean to say, then?”
Answer: “What my ex did was wrong because he checked our son out of school and enrolled him in a new school without my consent, and our Decree says we make school choice decisions together.”
Do not accept the attorney’s allegedly logical inferences and deductions. Whenever a questioning attorney is characterizing, summarizing or deducing information in his or her questions, he or she is doing so in a light favorable to his case, not yours. 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 as true and the questioning will go forward without you having a chance to correct the errors.
Wrong Way:
Question: “Does your spouse work full-time?”
Answer: “Yes.”
Question: “Are you capable of working full-time?”
Answer: “Yes.”
Question: “Do you work full-time now?”
Answer: “No.”
Question: “So isn’t it only fair that you be imputed a full-time wage?”
Answer: “Well . . .”
Question: “You expect your spouse to work full-time, don’t you?”
Answer: “Yes.”
Question: “If you can work full-time, but don’t, how is that fair to your children?”
Answer: “I guess it’s not.”
Question: “So isn’t it only fair that you be imputed a full-time wage?”
Answer: “But . . .”
Question: “So you expect your spouse to work full-time, but not you?”
Answer: “No, no.”
Question: “So isn’t it only fair that you be imputed a full-time wage?”
Answer: “Sure.”
Right Way:
Question: “Does your spouse work full-time?”
Answer: “Yes.”
Question: “Are you capable of working full-time?”
Answer: “Yes.”
Question: “Do you work full-time now?”
Answer: “No.”
Question: “So isn’t it only fair that you be imputed a full-time wage?”
Answer: “Not in this case, no.”
Question: “You expect your spouse to work full-time, don’t you?”
Answer: “Yes.”
Question: “If you can work full-time, but don’t, how is that fair to your children?”
Answer: “Because I am attending school full-time to increase my earning capacity. I’ve been a stay at home mother for the past 11 years while our children were young, and I have no job skills.”
Question: “So isn’t it only fair that you be imputed a full-time wage?”
Answer: “No, not while I’m a full-time student.”
Question: “So you expect your spouse to work full-time, but not you?”
Answer: “That’s not what I said.”
Question: “So isn’t it only fair that you be imputed a full-time wage?”
Answer: “No, not while I’m getting job training as a full-time student.
[if the attorney then asks why, answer, but don’t anticipate the question]
Question: “Why?”
Answer: “I can’t take a full-time course load and work full-time and take care of the kids at the same time.”
You watch enough TV and Internet to know that opposing attorneys questioning you are trying to make you look foolish, ignorant, to be a liar or a loose cannon. Don’t give the bastards the satisfaction—keep your cool.
Every word you say is being recorded. If you’re on camera, every expression you make, the spit flying from your mouth, your shifty eyes, the stammering, the twitching, the sweat, the veins popping in your forehead, and the awkward silences will be recorded for all to see. If you find yourself reaching the breaking point, ask for a moment to visit the restroom or take a breather before you crack. You’re entitled to such breaks.
- Mistakes happen; don’t let them send you into a tailspin.
Keep in mind that every witness makes mistakes under questioning. Some are bigger than others. If you make a mistake or overlook something, 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.
If you know you made a mistake in your deposition and then wait until trial to try to fix that mistake, it will almost always surely be too late, but even then it is better to ‘fess up and correct the mistake than to allow it to persist.
- “I don’t know” and “I do not recall” are acceptable answers—when they are true (meaning that you really don’t know).
All your life you have been coming up with the right answers, be it answering questions on exams or accurately answering questions at work. Knowing the right answers matters. Knowing the right answers to critical questions in your work life can greatly affect your success. The world rewards knowing the right answers, punishes not knowing the answers.
In a deposition, however, sometimes you simply don’t have all the answers. It’s not your fault, so don’t act like it is.
You do not need to have all the “right” answers in a deposition. You are not expected to have all the answers. You can’t have all the answers. Don’t act like you do—that’s lying.
It’s human nature to want to avoid looking foolish or ignorant, but the opposing attorney is playing upon your vanity and pride to make you speculate and appear to be a fool and/or a liar. Do not succumb.
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 in response to the questions, to the extent that you know the truth.
When the opposing attorney asks:
“Is there anything else?”
“Is there any other reason?” or
“Do you have any other opinions?”
do not answer “no” to the above questions. “No” is an unequivocal denial. Rather, state: “That is all I can recall at this time,” or “I don’t presently know,” or a similar response. Leave the door open for any later recollection that may occur prior to or at the trial. If you claim to remember nothing else, if you state that you’ve forgotten or omitted nothing in your testimony in your deposition, but are then confronted with a document or witness that shows otherwise, you may not look forgetful, you’ll likely look like (or be painted by the opposing attorney to look like) a liar.
“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 school principal?”
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 principal,” or “I do not recall meeting the principal recently,” or “I am not sure,” is certainly more accurate. While your answers should be brief and to the point, be wary of unequivocal “yes” or “no” responses to some questions.
Don’t:
Question: “So are these seven accounts all of your financial accounts?”
Answer: “Yes, that’s it.”
OR
Answer: “Yep.”
Do:
Question: “So are these seven accounts all of your financial accounts?”
Answer: “As best I can recall at this time, yes.”
Question (stated in a sarcastic way calculated to make you feel stupid): “You mean you don’t know how many accounts you have?”
Answer: “These seven accounts you asked about are what I can remember at this time, Mr. Smith, but I can’t say with absolute certainty that my accounts are limited to these seven.”
Question: “Well, take a moment and think about it. I don’t want you leaving out key information.”
Answer: “Mr. Smith, these seven are what I can remember now. If I discover anything else, I will notify you through my lawyer.”
If you think that claiming not to know the answer to a question is a good way to avoid having to answer the question truthfully, however, think again. Most people’s B.S. meters are pretty well-calibrated. If you consider yourself to be a skilled liar, you’re likely only fooling yourself, not others.
Don’t:
Question: “Did you and your boss hide your bonus from your spouse?”
Answer: “I don’t recall.”
Question: “You don’t remember whether you hid your bonus from your spouse?”
Answer: “That is correct. I don’t recall.”
Question: “Did you report income of $50,000 on your income tax return?”
Answer: “I don’t recall.”
Question: “But your bank statement shows $26,000 deposited by your employer into that account at the end of the fourth quarter of 2014, correct?”
Answer: “I don’t recall.”
Question: “Well, take a look, sir. Here is your tax return, here is your bank statement I subpoenaed. What do they state?”
Answer: “That I reported $50,000 bonus income on my tax return and that my total deposits into my account from my employer total $76,000.”
Question: “Is your tax return accurate?”
Answer: “I don’t recall.”
Question: “Is your bank statement accurate?”
Answer: “I don’t recall.”
Do:
Question: “Did you hide your bonus from your spouse?”
Answer: “Yes.”
Question: “Why?”
Answer: “I was so bitter and hurt over her affair that I felt she didn’t deserve to share in it.”
[Now this doesn’t make what the husband did right, but it’s a heck of a lot more understandable and believable than “I don’t recall.” Husband may take a hit for admitting to concealing the bonus, but his credibility won’t be shredded as it was in the ridiculous “I don’t recall” example.]- Do not guess, speculate, or surmise in responding to a question. You testify as to what you know, not what you don’t know, and guessing is, by definition, not knowing.
Remember the golden rule—tell the truth. 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 your own knowledge, second-hand info, hearsay, or belief.
Speculating and guessing are not truthful because speculating and guessing is not based on what you personally know or know to be true.
For instance, assume that you are accused of not knowing your child’s special health needs. You are asked if you know how to apply some prescription ointment.
Do:
Question: “Do you know how to apply the ointment?”
Answer: “Yes.”
Question: “How is to be done?”
Answer: “I squirt about half an inch of it onto my finger and gently rub it in a circular motion on the scab until it is evenly distributed.”
Question: “Is this consistent with what the doctor directs?”
Answer: “I have no personal knowledge of what the doctor directs; this is how my wife told me the doctor instructed it be done.”
Don’t:
Question: “Do you know how to apply the ointment?”
Answer: “Yes.”
Question: “How is to be done?”
Answer: “I squirt about half an inch of it onto my finger and gently rub it in a circular motion on the scab until it is evenly distributed.”
Question: “Is this consistent with what the doctor directs?”
Answer: “What? You think I don’t do what the doctor directs? You think I’m careless? Is that what you’re asking? I know what the doctor wants done.”
Question: “So the doctor told you directly what to do?”
Answer: “Well, actually, no.”
Each of the above answers is accurate and responsive to the attorney’s questions. You did not, however, volunteer any information or guess what was wanted in the left column. The right column shows what happens when you volunteer information and try to guess what is wanted. Speculating and guessing are not truthful because speculating and guessing is not based on what you know or know to be true.
- Stick to the facts (and re-read Rule 11 above).
You may have the tendency to characterize your statements and embellish them. When questioned in a court action, such is extremely detrimental. Avoid characterizing your testimony with lead-ins such as “in all candor,” “honestly” or “to tell you the truth.” Some people use this phrases without thinking. Start thinking.
Do not answer questions about things you know with the colloquial “I believe.” For example, if you are asked whether you gave your son his insulin shot on Friday and you know with absolute certainty that you administered the shot, but you answer with “I believe I did,” you create a needless and confusing impression of doubt.
We also have a tendency to reveal our state of mind when speaking in normal conversation. For instance, when asked if you buckled the child’s seat belt, the answer in a deposition is simply “yes,” not “yes, and everything seemed to be in order.” Your thoughts are to be given only when you are specifically asked for them.
Also, avoid the use of “never” or “always.” Such language can come back to haunt you if you claimed “never” to have visited a certain store only to be presented with a receipt from that very store showing you were there two years ago.
Wrong Way:
Question: “Have the children been late to school when they’re with you?”
Answer: “Never!”
Question: “Do you recognize this document?”
Answer: “To be honest*, I don’t know what that is.” [it’s a school attendance record]
Question: “How many tardies does it show for the children this quarter?”
Answer: “Three.”
Question: “Which parent were the children with on those days?”
Answer: “Me.”
Question: “But you just said the children had never been late to school when they’re with you, correct?”
Answer: “I believe* they were with their mother on one of those days, and besides, by “late,” I thought you meant* more than an hour late.”
Question: “Whatever gave you that impression?”
Answer: “I just think of late as being more than an hour late.”
Question: “So how tardy were the children on these three days when they were with you?”
Answer: “About 45 minutes.”
Lawyer: “I see.”
Right Way:
Question: “Have the children been late to school when they’re with you?”
Answer: “I don’t remember exactly.”
Question: “Do you recognize this document?” [school attendance record]
Answer: “Yes.”
Question: “How many tardies does it show for the children this quarter?”
Answer: “Three.”
*Did you catch that? Do you see how lame stuff like this needlessly makes you look?
- Behave professionally and maturely.
While this may seem to be common sense, it is imperative that you behave professionally and maturely at all times. You must dress professionally and maturely (e.g., wear a suit). You obviously should not chew gum or eat when questioned. Sit up straight, don’t slouch. Speak clearly and audibly into the microphone. You should also refrain from any off-color humor (as tempting as a good attorney joke may be).
While it is hoped that 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 and maturely will enable you to concentrate on providing truthful testimony and present a good face to the court.
That stated, being courteous, professional, and mature is not synonymous with being a doormat. If the attorney deposing you behaves like a real jackass, ask your attorney to note it for the record.
- You Are Never Off the Record
If you are tired or not feeling well, you may, at any time, request a recess (a break). 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 slurs while testifying. This can be extremely embarrassing and damaging to you.
Remember the written transcript does not communicate sarcasm or gestures. The court reporter also does not usually note laughter. Therefore, although the entire room may be laughing at your comment, it may seem dead serious, extremely rude, crude, or weird when printed in black and white and read to a judge several months later.
- Know your role in the process.
Testimony taken in a deposition or in court can be an intimidating process and should never be taken lightly. Following the foregoing guidelines will help ensure that you have testified truthfully and with confidence.
A question that often comes up as to how your attorney prepares you for your deposition without suggesting what your testimony should be. Obviously, your attorney will not tell what to say. It is unethical, as well as unlikely to help you (and could even backfire).
But what you can—and should—do is have your attorney explain to you what the case is about, how your testimony fits into it, and what your testimony will likely cover. If your attorney identifies the key themes that support your case then you can weave those themes into your explanation of the case. Ask your attorney to do that. Now.
Opinions
If you are not represented by counsel, and are not being paid as an expert, be wary of giving any opinion testimony. For example, you may be asked “How do you think your smoking may affect your children’s health?” Or, “In your opinion, what could have been done to prevent Jimmy from running away?” Each of these questions calls for your opinion. Responding to such questions can be damaging to you. At the very least, never offer any unsolicited opinions.
Example 1
Don’t:
Question: “How do you think your smoking may affect your children’s health?”
Answer: It won’t affect them at all. I don’t smoke around the children. I never have. [Truth be told, this isn’t a terrible sample answer, but see the “Do” column for how to make such an answer even better, meaning more accurate and better for your case.]
Do:
Question: “How do you think your smoking may affect your children’s health?”
Answer: You’re asking me to speculate. I don’t know. Besides, I don’t smoke around the children. I never have.*
Example 2
Don’t:
Question: “In your opinion, what could have been done to prevent Jimmy from running away?”
Answer: Gee, I don’t know. Maybe love him more? Be less critical of his ballet dancing? Pay closer attention to the warning signs? Perhaps take him to counseling?
Do:
Question: “In your opinion, what could have been done to prevent Jimmy from running away?”
Answer: Are you asking for my opinion? Are you asking me to speculate? You’d have to ask Jimmy why he ran.
OR simply:
Answer: You’d need to ask Jimmy why he ran.
*Notice this witness broke the “never say never rule,” but there are exceptions, and this is a good example.
Being questioned about documents and pictures
You will likely be shown and asked to identify and/or comment on letters, financial documents, photographs, and other documents pertaining to the law suit. These documents are typically those that the opposing side feels support its case and/or weaken yours.
Your records do not necessarily speak for themselves. If they did, there would be little to no need to take your deposition about them.
The opposing attorney has already reviewed your records prior to the deposition, and has questions about them. You want to re-familiarize yourself with these records so you can confidently respond to—and possibly anticipate—the attorney’s questions. Because the attorney will be questioning you about your documents, failing to review them in advance will only lengthen and/or weaken your deposition.
You may be shown several documents when you are being questioned. The attorney has certain objectives when showing you these documents:
- To authenticate the document, i.e., to establish that 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 of the document, where it came from, where it has been, who sent it, and who received it.
- To learn what 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.
- Finally, determine whether you have, in fact, ever seen the document before.
If you think or know that you have never seen the document, then when the attorney asks if you have seen it before tell him that you do not recall 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 taking a passing glance through it.
Additionally, if your subpoena or request for production of documents does not request you to bring any documents to your deposition, 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 or requested, ask him or her to send you a subpoena or request for production of documents for them. This will give you and your attorney an opportunity to review the request and make an appropriate response.
Do
Question: I am handing you what is marked Petitioner’s Exhibit “A” [attorney hands you a document]. Do you recognize this document?
Answer: [immediately, after seeing the top page and without reviewing them first] Yes.
Question: Would you please describe for me what it is?
Answer: They’re notes I made.
Don’t:
Question: I am handing you what is marked Petitioner’s Exhibit “A” [attorney hands you a document]. Do you recognize this document?
Answer: [after looking over the pages carefully] Parts of it, yes.
Question: Would you please describe for me what it is?
Answer: These appear to be a copy of some of the notes I made during the meeting with Mr. Hansen.
Question: Did you prepare this document?
Answer: I prepared these pages [indicates the pages the deponent prepared], pages 1 through 6, and page 8, but not pages 7 and 10 through 11 [indicates the pages the deponent prepared]. And it appears that one of the pages I prepare has been removed from this copy.
[1] Impeach: 1) to discredit the testimony of a witness by proving that he/she has not told the truth or has been inconsistent, by introducing contrary evidence, including statements made outside of the courtroom in depositions or in statements of the witness heard by another.