Sunday, January 16, 2011

Testifying at Deposition (Part I)

 A deposition is a question and answer discovery practice where the witness testifies under oath before a court reporter who records the testimony and creates a transcript.  At its simplest, a deposition is the opposing party’s opportunity to find out what the party or some other witness knows and might testify to at trial.

Giving a deposition can be very unnerving. However, try to relax by remembering the primary rule – tell the truth. The facts are the facts and lawyers can’t change facts. The lawyer’s job is to develop and emphasize the most positive facts and minimize or impeach the negative facts.

Witnesses get into trouble in a deposition when they unintentionally give a wrong answer because they didn’t understand the question, or worse, answered a question that was different than the one asked.  As such, it is really important to make sure to understand the question.  Don’t rush giving the answer. Consider the question and make sure it is understood before answering. If the question is unclear, ask for it to be repeated or restate the question back to questioning lawyer to make sure it is understood.

Another big problem is that people often forget things when they are under the stress of testifying.  Watch out for being unequivocal.  Questions that ask for “everything that happened” or whether someone “always” does something or “never” does something should make the internal alarm bells go off.   A witness might not remember everything they did on a day - - - the witness needs to make sure it is understood that their testimony reflects everything they recall at this time while still acknowledging the possibility that there may be other instances.

This next one might seem silly – but I’ve seen it be the downfall of more than one witness.  NEVER assume what the questioning lawyer is saying is actually true.  Some lawyers just ask things that they don’t know or suggest facts that would be favorable to their case and see if the witness will agree.  Listen to the question and unless the suggested facts are 100% known to be true, don’t adopt the suggested facts as the actual facts.

Part two will consider documents within a deposition and overall strategies which might be used in certain circumstances.

Michigan Legal Intelligence is authored by W. Jay Brown, a Midland Michigan based civil litigation attorney. The foregoing is intended to be for general information purposes only and is not intended to be specific legal advice and does not create an attorney-client relationship between W. Jay Brown PLC and you. Individuals with legal issues are advised to consult an attorney of your own choosing for advice specific to your situation.

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