You or your company is involved in a lawsuit.  The opposing lawyer has sent a notice to your lawyer setting a date, time and location of your deposition.  This is your first time.  You have questions.

This article addresses the basic questions a prospective witness may have concerning his/her conduct at both a deposition and at a trial.  Many of the answers apply to both.  Although many of the answers will be obvious to an experienced witness, the purpose of this Q and A is to help the first-time witness.  Nevertheless, the axioms for being a good witness will be helpful reminders for more experienced witnesses.

These Qs and As also assume that you are not appearing as an expert witness.  There are many “rules” applicable to experts which do not apply to fact witnesses.  Another caveat I should mention is that the answers I am stating apply under the state court rules of procedure rather than the federal court rules, which have some important differences relating to depositions.

Q:     What is a deposition?

A:     A deposition is the taking of testimony of a witness who is known or presumed to have knowledge which is relevant to the issues in the lawsuit, taken under oath, recorded by a court reporter and transcribed in booklet form, containing verbatim the questions, answers, objections and agreements, if any, of counsel.  A deposition may also be video-taped, which brings about concerns about appearances and conduct when the camera is running.

Q:     What do you mean by “relevant?”  How does that apply to me?

A:     “Relevant” refers to evidence, in your case, testimony, which makes a fact at issue in the case more, or less, probable than it would be without the evidence.  A fact is “at issue” if it is of consequence in deciding the result of the dispute.  It doesn’t really apply to you from your standpoint because you are not the judge of what is or isn’t relevant.  Ultimately, the trial judge determines what is relevant, if there is a serious enough disagreement between counsel for each side to take the question to the judge.

Q:     Can I be forced to give my deposition?

A:     Generally, yes, if you are served with a proper subpoena and that subpoena sets the location of the deposition at a place in Texas within 150 miles of where you reside or where you were served.  I mention “in Texas” because different rules apply if you are not a Texas resident, but I will assume for these purposes that you do reside in Texas.  Unless steps are taken to object to or quash the deposition notice, you should appear.

Q:     Must I comply with the setting of the date, time and place of the deposition by opposing counsel?

A:     Not necessarily.  If you do not agree with the time or the place set by the opposition, the lawyer for you or your employer can file a motion for protection or a motion to quash the deposition if the filing is made within 3 business days after you were served.  If that filing is timely made, the setting of the deposition is stayed, so you would not have to appear.  Time and place are subjects to talk to counsel about.  If you have a serious conflict with the date chosen by opposing counsel, you need to bring that to your lawyer’s attention.

Q:     Do those same rules apply to me individually and as a party or as an officer or employee of a corporation?

A:     Virtually the same.  However, as a party or as an officer or employee of a corporation, the service of the subpoena may be made on your attorney or the corporation’s attorney.  The same 3-day rule applies to both situations to stop the deposition if desired.  Frequently these rules do not come into play because counsel will agree on dates and places, after conferring with clients and/or witnesses, before a new date and place is selected.  As well, the staying of a subpoenaed deposition frequently prompts counsel to confer to set new dates and places by agreement.

Q:     What if the subpoena requests the production of documents?  Am I required to find them and bring them?

A:     Assuming that the deposition is going forward, whether by no opposing motion having been filed, or by agreement, yes, document requests can generally be legitimate.  However, the question of document production implicates multiple variables: (1) are the document requests specific enough to let you know what is being requested; (2) are the documents within your, or your company’s possession or control; (3) is the burden of finding and reproducing them seriously onerous; (4) are the documents really substantively relevant; (5) is there a realistic timeframe stated; (6) are there competitive and/or trade secret issues involved in the requested documents?  The answers to all of those variables are not within the scope of this article.  They are the questions to be considered by your litigation counsel.  You should be aware, however, that when you or your company is served with a document request you must not destroy any files which may relate to the issues in the lawsuit.  The safest procedure is to guard against document destruction when you first realize that litigation is likely to result from a fact situation involving you or your company.  Destruction of information under those circumstances may have serious consequences: the opposition may be able to persuade the judge to inform the jury that they are entitled to conclude that the destroyed information was favorable to the opposition.  Even worse, in a flagrant destruction scenario, the judge may strike your pleadings, resulting in a judgment against you, whether you are a plaintiff or a defendant.

Q:     What if the requested documents or records are in computer databases?  Am I required to provide electronic information?  How do I protect electronic data?

A:     Electronic data can be as discoverable as hard copy data.  Because there are so many variables, many of them relating to the formats in which the data are maintained, and because deleting and over-writing issues may arise, even through inadvertence, those are questions to raise with litigation counsel.

Q:    Before I give a deposition, should I know how it can be used at trial?

A:     Yes, you should know, because if you are also a trial witness your deposition testimony can be used at trial as a check against your trial testimony.  What I mean by that is, if your testimony at trial is different from what it was at your deposition, the opposing counsel can point to the contradictions in front of the jury during your testimony.  That could be both embarrassing and potentially dangerous to your side of the case.  The lesson is to be truthful and accurate in both your deposition and at trial so that no contradiction can occur.  You should also be aware that a deposition can also be used at trial as your trial testimony, by having a surrogate “you” in the witness chair, reading your answers to the lawyer’s reading of the questions.  And it can be used in that manner by either side at trial.

Q:     You mentioned “objections” in one of your answers.  What do you mean, and how does that affect me as a witness?

A:     One of the most important aspects of giving testimony by deposition or at trial is to have a meeting with counsel beforehand.  At that meeting, your lawyer or your employer’s lawyer will generally go over the issues in the case, will determine how your testimony fits in the case, and will give you the kinds of suggestions/directions which I will give you here about being a good witness.  I mention that meeting with counsel in this context because one of the objections which your counsel may make is that the deposition preparation conversation involves privileged communications between attorney and client or between attorney and a responsible officer or employee of a corporate client.  The opposing side is not entitled to know what you and your attorney talked about, so if opposing counsel asks whether you have met with your counsel to prepare you for your deposition/trial testimony, which is a legitimate question, you can answer.  Counsel may also ask how long the conference lasted, but he/she cannot force you, over a “privileged communication” objection, to reveal what subjects you and your counsel discussed, or what advice he/she gave you about your testimony.

     So if one of those types of questions is asked, your counsel will object and instruct you not to answer, and you should – no, must – comply with that instruction.  If opposing counsel then asks if you intend to follow counsel’s advice, your answer should then be “yes.”

     A vital consideration to keep in mind concerning attorney-client privileged communications is that they cannot be made in the presence of, or shared with, persons who are not subject to the privilege.  That includes your friends, neighbors and relatives (other than your spouse), and perhaps even low-level employees of your company.  Caution must be observed at all times concerning the protection of privileged communications.  You have the right not to be forced to reveal them, but that right must be guarded.

     Opposing counsel is also entitled to find out if your lawyer showed you any documents to refresh your recollection, and to learn which documents were used for that purpose.  That does not mean that counsel gets to know about every document you discussed with counsel, just the ones that may have been used to refresh you recollection about some fact or facts.  So it is wise to be certain of that distinction, if any documents are reviewed in your prep session with your lawyer.

     The second type of objection which your counsel is entitled to make is what is called a “form” objection.  That is an objection to the form of a particular question.  It is not an objection which leads to an instruction not to respond.  It does not affect your answer, so your answer should be given as though the objection had not been made.  The objection is made in order to protect the right to object to the question in the event the deposition is used at trial.  It covers such objectionable questions as one which assumes facts not in evidence, or which seeks a speculative response, or which has been asked and answered, or which is argumentative, or which mischaracterizes the evidence.  But, even if the question suffers from one or more of those deficiencies, at a deposition an answer cannot be avoided because your attorney cannot instruct you not to respond.  That said, you do have the right to protect yourself in making your responses – a point which I will mention again – by recognizing the problem with the question.  That requires – as I will refer to again – attentiveness.  You will need to recognize the deficiency in the question because, generally, unless asked by opposing counsel, your lawyer can’t state during the deposition the underlying reason for the objection, just that there is an objection to the “form” of the question.  That doesn’t mean that each time your attorney says “Object to form” you must try to figure out the reason for the objection.  It might be for a technical rather than factual reason – like the question assumes a fact not in evidence, or that opposing counsel failed to lay a predicate for the question.  Those are things that your lawyer will recognize that you cannot be expected to.  So when your lawyer says “Object to form” just be aware that closer attention to the question is appropriate, and give your response accordingly. If you need to, ask that the lawyer re-ask or rephrase the question.

Q:     What is my job at the deposition?  Do I ensure that my part is told?

A:     Your job is only to respond to questions asked; it is not to tell the story.  That aspect of your testimony will be handled by your lawyer, typically at trial and not at the deposition.  There are four basic instructions for being a good witness: (1) listen attentively to and make sure you understand the question; (2) pause (if necessary) to consider your answer; (3) give your answer truthfully and only to the question asked; and (4) stop and wait for the next question.

     I say “if necessary” in the second instruction because a pause may not be necessary.  The question may be simple and direct and require no time to consider your answer, such as “What is your name?” “Did you attend high school?” “Are you married?” and the like.

     Your job at a deposition taken by opposing counsel is to be a witness concerning the facts within your knowledge and which you are able to recall; it is not to be a spokesperson for yourself or for your company.  You will have ample time to tell your part of the “story” the way you and your lawyer want it to be told when he/she has you on direct, whether you both decide to tell that story in the deposition or at the trial.

     There is one important exception to that rule.  That is when opposing counsel asks for an explanation of a decision, or for some intentional action, or for some intentional inaction.  That is the type of question which should be thoroughly discussed with your lawyer before the deposition or trial, to enable you to state every reason for the decision, action or inaction.  That question opens the door to an extended answer, and the opportunity should be grasped, because to fail to give a complete answer allows the opposition at trial to compare the trial answer with the deposition answer, and then the Q and A in front of the jury might go something like this:

Q:     Do you recall that I asked that question at your deposition?

A:      Yes.

Q:       And at your deposition you said the reasons were [x, y and z]?

A:      Yes.

Q:      But here today you have added [a, b and c] to the reasons, haven’t you?

A:      I guess I forgot [a, b and c] back then.  I’ve had more time to think about it since then.

Q:       Well, do you regard [a, b and c] as important reasons?

A:      Yes.

Q:      It’s certainly true, isn’t it, that when I took your deposition we were much closer in time to the [event which is the subject of the suit]?

A:      That’s true.

Q:      Your memory would have been better then, wouldn’t it?

A:      I don’t know, I guess I just forgot.

That kind of answer could leave the jury with the impression that you have made up reasons a, b and c because you would have included them if they were really important – important enough not to forget.  Your credibility and the credibility of the company, if one is involved, can be affected by a failure to include every reason in response to an “explain why” question.  That kind of answer would not be given if you have properly prepared for the deposition and are attentive to the question which asks for an explanation.

     Attentiveness also means listening for the mistakes in the questions, as I alluded to above.  Being attentive means you are constantly aware that the event in which you are participating is a cross-examination, not a friendly conversation.

     Because it is a cross-examination – an interrogation – it is not your job to help the opposing lawyer do her job, so do not start believing that she is your newest friend just because of a friendly manner in her questioning.  Her job is to seek out support for her client’s story and/or to maim or destroy your contribution to your or your company’s story.  Raising doubts about your credibility may be one of her goals.

     So attentiveness is very important.  Only by being attentive will you be able to recognize when a question, for example, asks for speculation or mischaracterizes your previous testimony, or asks more than one question.  When you recognize a bad question (and your attorney’s “form” objection may provide a clue that there is a problem with the question), you have the right to protect yourself by responses such as the following:

• “Would you mind repeating that question?  I’m not sure I got it all.”
• “I don’t believe I said X, which you ask about in your question.”
• “I need to make clear that (one of the matters included in the question) did not happen, so I can’t answer the question the way you have asked it.”
• “I believe I have already answered that question.”
• “I believe I have been asked two questions.  If you will break them up I will try to answer them.”
• “I don’t know how to speculate about something that didn’t happen.”

     Attentiveness is also important in recognizing other types of questions.  One of the most important cross-examination questions is the leading question.  That question is an attempt to get you to agree with whatever facts the lawyer puts into her question.  Problems can occur if the lawyer stacks the facts in her question and asks you to agree.  Let’s look at some of the types of leading questions so you can see how they are constructed:

• Isn’t it true that you were at the Director’s meeting on June 2nd?
• You do agree (or admit) that you are there, don’t you?
• You were there.  Right?
• You were there.  Correct?

     The “tells” that show that the questions are leading are the words that call for agreement.  They are not objectionable questions, being the most common type of cross-examination question, but they are a type that you must pay close attention to because you are agreeing with her way of stating the facts.  As I indicated, they become more problematic for you when more than one fact is included in the question, but that is also true when counsel throws in an adjective to color a fact and when she is trying to sum up a series of answers.  Consider these questions:

• “Isn’t it true that both you and Mr. Brown attended that meeting, that Bill Jones and Barbara Smith were also there, and that you discussed what to do about my client’s situation?”
• “You agreed with Ms. Smith’s caustic response to Mr. Brown’s question, didn’t you?”
• “You’d agree with me, won’t you, that my client’s claim, being for several million dollars, was the most important topic at that meeting?”
• “Let’s see now, to recap, you have said there was a meeting, that you attended, that Brown, Jones and Smith were also there, that you talked about my client’s several million dollar claim, that there was a lot of contentious argument about that subject and that you decided to do nothing.  Right?”
• “Let me see if I understand this.  You and your company entered into a contract with my client to buy and take delivery of all of the widgets my client manufactured and he was led to believe that he was the only supplier, yet you went to another supplier, is that right?”

     The problem for you with those questions is that they each include several facts, each of which you are being asked to confirm, and two of them contain adjectives (“caustic;” “contentious”) that you may not agree with, one attempts to judge the importance of the topic, and one characterizes what her client was led to believe.  If you say “yes,” or “correct” or “I believe so,” you are not only agreeing that each of the facts is true but that counsel’s descriptions are valid.

     Your job as a good witness is to mentally dissect questions with multiple facts, to examine each one to see if you agree that it happened, and to assess counsel’s descriptions to see if they accurately portray the tone of what happened.

     You have the right to protect yourself against questions which don’t accurately state the facts or which mis-describe the way things went.  Consider these potential answers:

• “No that’s not true.”  [That is your answer if any one of the people in question did not attend the meeting or her client’s situation was not discussed].  At that point your answer is complete, because to volunteer which of the several facts is not correct is to go outside of the question.  Remember answer only the question asked.  It is counsel’s job to find out what isn’t true.
• “I don’t agree with your characterization of Ms. Smith’s response.”  Stop.  Say no more as to that question.  Wait for the next question.  Stating more helps opposing counsel.
• “I don’t agree.”  That is your response if the size of the claim was not known or if it was not the most important topic.  Say no more. If counsel fails to find out why you don’t agree, that is her problem, not yours.  Remember you are not there to help opposing counsel.
• “I don’t believe your understanding is fair.  You have left so much out that I can’t agree that your understanding is correct.”  Stop.  Say no more.  It is up to counsel to ask you about specific points of disagreement.  However, a word of caution: there truly must be a separate narrative which the jury would see as filling out the facts.  If what opposing counsel said is consistent with the facts, and there are no other facts which “fairness” would dictate should be considered, your avoidance could be seen as obstructive.  The lesson: be true to the facts.
• “I don’t know what your client was led to believe.  I wasn’t involved in negotiating the contract.”  To protect yourself you have to pay attention to the questions.

     I want to over-emphasize this point: when I say answer only the question asked, I mean don’t volunteer information.  Not only are you providing more subjects for cross-examination but you may be volunteering opposing counsel information she didn’t know about.  That is the reason I caution you that this is not a friendly conversation; it is a cross-examination.  The “pause” I talk about is the several seconds in which you think about the scope of the question and come up with the answer to that specific question.  If she asks: “Are you married?” (assuming you are) your answer is “Yes.”  It is not, “Yes, we got married in 1999 at a beautiful church ceremony and I got drunk at the reception.”  Too much information.

     So do not get caught up in the dialog with counsel so much that you lose focus on why you are that and on what your job is.

     You should also be aware that if counsel interrupts one of your answers, perhaps intentionally or perhaps because you paused midstream, you are within your rights to tell her that you were not finished with your answer, and then proceed until it is completed.

Q:    You say I should pause before I give my answer.  Can’t that be construed by the jury as uncertainty?

A:     You should understand that I am talking about pausing for seconds, not minutes.  It may depend on how long ago the events occurred and their relative importance to the case.  A pause to consider long ago events would not be untoward because memories fade and people are not expected to have perfect memories.  But if the events are relatively recent, or are the operative facts of the dispute, greater expectations exist that memories will be fresh enough to answer questions without significant pauses.  The “pause” has these basic purposes, (1) to give you time to consider your answer, and (2) to give your attorney time to state an objection, if she needs to, and (3) to allow you to make certain that opposing counsel has finished her question.

     On the first purpose, there may be a distinction between observing that “rule” in a deposition as opposed to trial testimony.  You should be concerned about lengthy, or multiple pauses in front of a jury.  However, in a deposition a pause, or a series of pauses, will never be seen or known by a jury (unless opposing counsel comments about it on the record in the deposition and perhaps not even then), (1) if the deposition is not videoed, or (2) even if it is videoed, if pauses are not numerous or prolonged.  The fact is, full depositions are rarely read or seen in trials.  Live witnesses at trials are overwhelmingly preferred by all concerned – parties, attorneys, judges and juries.  Nevertheless, do not ignore the “rule” to pause; just don’t make a habit of it, or allow it to interfere with a natural flow of questions and answers.

     One of the requirements of the deposition process, just as it is at trials, is that people can’t speak at the same time.  That is because the court reporter is taking down verbatim everything that is being said.  That means that you must wait until the lawyer finishes her question before you begin your answer – a reason for the pause – and the lawyer is supposed to wait until you finish your answer before she begins the next question.  Many lawyers cover that aspect of the process with the witness near the beginning of the deposition, so that everyone is usually informed or reminded of that necessary understanding.

Q:     Can I ask my lawyer for help with questions during the deposition?

A:     Generally no, not during the deposition, while the proceedings are “on the record.”  If you have some concern about a question that you want to clear with your lawyer before you respond, with the exceptions I mention below, you are not entitled to confer with counsel before your answer.  You must first answer the question.  There are no attorney-client conferences between a question and an answer except in the special situations covered below.  If your concern is about the facts in the question or the way the question is asked, you are entitled to request opposing counsel to clarify the facts or to restate the question so you can understand it.  But you can’t ask your lawyer how to answer the question.

     Exceptions to that rule are when the question infringes on the attorney-client privilege or when the question is abusive.  Your lawyer will be alert for these kinds of questions, and will likely object and instruct you not to respond before you have an opportunity to respond to the question.  But considering how important privileges are, if you think the question may infringe on a privilege and your attorney may not be aware that the privilege exists, you are entitled to tell opposing counsel, “I think that question may involve a privileged matter.  May I consult with counsel to protect my rights?”  In that respect, you should be aware that there are more privileged relationships and situations than just attorney and client.  Although the extent of those other privileged matters/relationships are beyond the scope of this paper, privileges extend to (1) governmental reports made privileged by law; (2) husband and wife confidential communications; (3) confidential communications by a communicant to a clergy member; (4) political votes; (5) trade secrets; (6) confidential communications between patient and physician; (7) certain mental health information and communications. Privileges aside, if your concern about the question is not satisfied by your effort to get opposing counsel to clarify the question, you are entitled to ask for a break, during which you may consult with your lawyer about your concern.  Two things to be aware of in that respect: (1) consult with your attorney outside of the hearing of the court reporter and the opposition and only after the attorneys agree to go “off the record;” (2) once you are sworn by the court reporter “on the record,” everything within his or her hearing will be recorded, whether it is the Q & A or comments made by anyone present.  That means that any conversations with your attorney that you want to be private must be “off the record” and outside of the hearing of the opposition.

Q:     You mention “abusive questions.”  How do I recognize abusive questions and how do I deal with them?

A:     The goal of an abusive question is to goad you into an emotional response.  Those kinds of questions try to impugn your honesty, or try to show that you are arrogant, have disregard for other’s feelings, or are evasive, things which would demonstrate for the jury that you are not a credible witness or are just not a likeable person.  Harassment is abusive.  A misleading question can be considered as abusive. A question which invades your privacy may be abusive.  Often the problem with this type of question is that one side’s close cross-examination is the other side’s abusive, harassing, over-reaching question.  Fortunately, the rules of procedure expressly address the deponent’s rights when in good faith there is a reason to conclude that the questions are abusive.  First, as above indicated, your counsel is entitled to instruct you not to respond.  Second, you have the right to suspend the deposition to get a ruling from the court concerning the alleged abuse.  But that works both ways: opposing counsel can also suspend the deposition in order to seek a ruling that her questions are not abusive.

     The answer to how you should conduct yourself is that you must resist emotional reactions and depend on your lawyer to defend you when questions become abusive.  Stay cool, calm and collected because to do otherwise is to play into the strategy of the opposition to find a way to discredit you as a reliable witness.  Do not argue with opposing counsel and do not let her make you angry.  If you feel that you may become angry, ask for a break.

Q:    What should I say if I don’t know the answer to a question, or if my memory is weak, or if I just don’t remember at all?

A:     The typical reason for a person to be asked to give a deposition is that he/she saw, heard or experienced something which is relevant to the issues in the case.  Also, typically, the lawyers will have exchanged lists of people each side believes will have some knowledge relevant to the case.  So someone on one side or the other thinks you have useful information.

     Witnesses are usually deposed for first-hand knowledge: you were present, or were a witness, or heard something or received some writing relevant to the case.  But your knowledge may be limited, or even non-existent, as to particular facts or events.  Thus, if you were not present, heard nothing, did not witness an event or did not send or receive any writing about a particular matter, you are incapable of testifying to first-person knowledge.  That is when you can accurately say, “I don’t know,” or “I don’t know how to answer your question because I wasn’t there.”

     You are also entitled to rely on your memory.  Everyone knows that memories are selective and can fade over time, so it is a perfectly acceptable answer to say, “I don’t remember,” or “I don’t recall” when those kinds of responses are truthful.  Credibility problems can arise, however, if the event you are being asked to recall is something which you can normally be expected to recall, such as the negotiations for that big contract that put your company on the map, or the loud disagreement that occurred at a board of directors meeting, or, on a more mundane level, where you went to school.  The problem with an “I don’t recall” response is that it can be overdone, leaving a jury with the conclusion that you are hiding something.  The lesson: it’s okay if truthful, but bad when it looks evasive.

Q:     What do I do if I am asked about what someone said?  Isn’t that hearsay?

A:     In a deposition, unless the question is about some privileged communication, you should answer the question.  “Hearsay” is not a bar to the other side discovering information about conversations.  At trial, however, the judge is there to rule on whether the question does call for hearsay, or fits within one of the many exceptions to the hearsay rule, so opposing counsel may not be able to get before the jury the information about what someone said to you that she discovered in your deposition.

Q:     How far into my personal life can opposing counsel’s questions go?

A:     That, of course, depends on the nature of the litigation.  A divorce, for instance, is about your personal life.  But in a business-related lawsuit there are limits.  To start, you should be aware of the aspects of your life before the litigation which the opposing counsel is entitled to discover.  They include birthdate, high school, college, undergraduate and advanced degrees, if any, the subject[s] of college degrees, marriage, children (only that you have them, not their names), divorce, if any, home address, current business address, business and home phone numbers, employment history, job descriptions, job responsibilities, any books or articles you may have authored, and any prior litigation as a party or witness.  Many attorneys ask for driver’s license numbers and social security numbers, saying those are necessary for identification purposes, but I have opposed those revelations as unnecessary for that purpose and as too invasive of personal privacy.  However, I have not had that objection challenged to the point of a judicial ruling.

     Aside from privileged matters, the opposition is not generally entitled to know about (1) the private facts relating to your relationships with your wife and children (unless, of course, it is somehow relevant to the lawsuit issues); (2) your salary or compensation package (unless, of course, it is somehow relevant to the lawsuit issues); (3) your personal assets and liabilities (with the caveat that if you are a defendant and the plaintiff is seeking punitive damages against you personally, those financial facts may be discoverable).

     The Texas Supreme Court has held that the Texas Constitution protects personal privacy from unreasonable intrusion.  So there is good authority that will support the assertion of a claim of privacy against intrusive cross-examination.  Privacy rights also extend to questions about religious beliefs and to political orientation and voting choices.  I suggest that you and your lawyer discuss in advance of your deposition any areas of privacy that you may be concerned about.  That discussion will also give you an idea of the privacy matters which your lawyer thinks are entitled to protection.

Q:     Are there any other Dos and Don’ts about giving a deposition?

A:     Yes.  Several.  I will just list them without extended discussion:

• Dress conservatively and act professionally at all times;
• Do not disrespect or argue with opposing counsel;
• Do not engage in “friendly” conversations with opposing counsel during breaks when “off the record;”
• Sit erectly with your hands in front of you;
• Try not to punctuate your answers with hand gestures;
• Keep your hands away from your face;
• Do not chew gum, smoke cigarettes or chew tobacco;
• Do not use phrases to preface your answers such as, “To tell the truth,” or “In all honesty;”
• Do use phrases to preface your answers such as “To the best of my recollection,” or “As I recall” when you recall some but not all of the facts responsive to a question;
• Do ask for breaks when you need them, just not between question and answer;
• Do remember to respond “Yes” or “No” when that is a complete answer to the question;
• Do not look at your attorney between a question and an answer;
• Do not sigh or act exasperated with opposing counsel’s questions;
• Avoid non-verbal responses such as nodding or shaking your head;
• Avoid responses such as “uh-huh” or “un-huh;” say “yes” or “no” aloud;
• Do not use “always” or “never” in relation to your conduct;
• Do feel free to say “I don’t understand your question” when you truly do not understand it;
• Don’t let opposing counsel put words in your mouth.  If you don’t agree with her characterizations, say such as “I wouldn’t use those words to describe it.”
• In a video deposition, do not fidget or look at the ceiling; stay focused on opposing counsel;
• Do not bring and put reminder notes in front of you (or even with you in the room) while you are testifying unless you and your lawyer do not mind them being seen by opposing counsel; she is entitled to see them if she asks;
• If opposing counsel asks questions about a document do ask for an opportunity to review it (if necessary) before you answer her questions;
• Do not wise-crack about or belittle opposing counsel’s questions;
• Do let your lawyer know, when the deposition extends many hours, or is expected to last more than one day, when you are tired.  It is important that you are able to stay mentally alert.

Q:     From my standpoint as a fact witness, what are the differences between giving a deposition and being a trial witness?

A:     The obvious differences are that a judge and the jury are present at a trial, which only enhances each of the above answers, suggestions, Dos and Don’ts.  Secondly, even though a deposition may be regarded as a “formal” proceeding in the sense that there are rules governing it, the rules are even more formal in a trial, and the attorneys know not to ask improper questions and the subjects covered in testimony are more limited than in a discovery deposition, so the Q & A typically is shorter and more succinct.

     That doesn’t mean that opposing counsel will not try to make you look bad in front of the jury.  A trial is a time when that tactic is most likely to occur, so a great deal depends on her success in riling you in the deposition.  She found out what your buttons were and now she is primed to push them in the jury’s presence.  But if she didn’t succeed during the deposition she is less likely to try that gambit at trial.  The lesson: follow the “rules” at the deposition.

     Probably the biggest differences from a witnesses’ point of view are that you are now ready to testify about your side of the case by direct questions from your lawyer and that you do not know, if you or your company is a defendant, whether the opposition will call you in their plaintiff’s presentation of evidence, or whether your lawyer will be the first to question you.  In that situation, since you don’t know if you are going to be called by the plaintiff as an adverse witness, you must be prepared going into trial for both direct and cross-examination.  If yours is the plaintiff’s side, you know when you are going to be called, and you do not necessarily have to be ready on day one.

     One of the primary differences from a witness’ point of view is that a new focal point exists in a trial: the jury.  Where your dialog and attention in the deposition is focused on opposing counsel, in a trial there will probably be times, particularly on your side of the evidence presentation, when your counsel may tell you, “Please tell the jury about [x].”  He may have counselled you to look at the members of the jury as you are telling your story.  So you then must focus your answer to the jury.  Lawyers disagree about whether all answers should be directed toward the jury.  (I’m in the “only when asked to” camp) so here I will just say do as your lawyer directs or as your comfort level will allow.

     The important aspect of that evidence presentation, however, is in how you present yourself to the jury.  In a case where only dollars are involved, and not death or personal injury, it is inappropriate to be overly emotional in the delivery of your testimony.  Remember, the crux of an evidentiary presentation is credibility.  It is your job as a trial witness to be a sincere, reliable, believable and rational source of information to the jury.  Juries do not like evasiveness, pretension, arrogance, insincerity, egotism, argumentativeness and sarcasm.  It is also true that juries typically do not like jokesters.  Sometimes questions and/or answers come out funny, but striving for laughs is not something you should do in front of a jury.

     It is important to remember that you have at trial all of the protections you had at your deposition to deal with the types of questions which opposing counsel may throw at you.  Only in front of a jury your efforts to protect yourself must be very courteous.  You must demonstrate that you are being reasonable, and not officious or obstructive.

     One final word about being a trial witness: where your conduct at a deposition centered only around a lawyer’s office and conference room, your conduct at trial extends not only to the courtroom but also to the halls, elevators, entrances and exits, and even sidewalks and parking lots outside of the courthouse.  That is because you do not know when a member of the jury is nearby or is in a position to observe your conduct or hear your conversations.  The court will instruct everyone that lawyers, parties and witnesses cannot associate with or talk to the jurors – even prospective jurors – until that instruction is released at the end of the trial.  So your conduct in and around the courthouse must be circumspect at all times during the trial, not just when you are testifying.

No information in this article is intended to constitute legal advice. For specific legal advice, please contact an attorney.

If you have any questions or would like more information about deposition or trial testimony or preparation, please contact Joe Roady at 713.220.9153 or jroady@hirschwest.com.