Listen carefully to each question during the deposition. Pause for a moment to consider the question and allow time for other attorneys to object.5 Your attorney’s objection may suggest the best way for you to respond to the question. Refrain from answering any questions when defense counsel advises you to do so (Table 3).
Don’t answer questions you don’t understand. Rather, ask for clarification. Avoid using adjectives and superlatives such as “never” and “always,” which may be used to distort or mischaracterize your testimony at trial.
Don’t guess. No rule prevents opposing counsel from asking a witness to speculate, but generally avoid doing so. You are required to tell the truth—not to speculate or volunteer guesses. The best way to cause a jury to disbelieve your testimony is to make inaccurate or unfounded statements, which opposing counsel will surely point out at trial.
Don’t be tempted to “plumb the depths” of your memory for a forgotten piece of information, however. If asked, for example, if a patient displayed a specific symptom during an appointment 4 years ago, the true answer is likely to be “not that I recall,” rather than “no.” Qualify similar answers with statements such as “to the best of my recollection,” or “not that I recall at this time.”
If opposing counsel asks questions based on a particular document, request to see the document. Review it carefully for:
- who signed and/or authored it
- when it was prepared and dated
- whether it is a draft copy
- whether it contains confidential information relating to patients other than the plaintiff
- whether it is attorney-client privileged
- and—most importantly—whether opposing counsel has quoted portions of the document out of context.
Procedural pitfalls. Throughout the deposition, the attorneys may periodically tell the court reporter they wish to have a discussion “off the record.” Nothing is off the record for you, however. If you make a statement when the court reporter has been told to stop, opposing counsel can summarize on the record everything you said during that time.
At the beginning or end of the deposition, one of the attorneys may ask if you wish to retain or waive the right to read and sign the deposition transcript. Seek your counsel’s advice, but defendants usually choose to retain this right. Typically, you will have 30 days to read the transcript and correct any errors. Keep in mind, though, that substantive changes that go beyond typos are likely to be the subject of intense cross-examination should the case go to trial.9
Depositions are sometimes videotaped, usually because a witness will not be available at the time of trial. Because the jury will hear and see you, approach a videotaped deposition as if it were an actual trial. Dress appropriately, speak clearly, and look directly into the camera. Don’t feel embarrassed about making sure you are videotaped with the best possible lighting, camera angle, and background.
Table 3
Deposition dos and don’ts
| Always tell the truth |
| Actively listen to questions, and pause before answering |
| Keep your cool; never lose composure |
| Answer only the question asked |
| Stop speaking and listen carefully if your attorney makes an objection |
| Avoid long narratives, and don’t volunteer information |
| Don’t speculate or guess |
| Avoid absolutes such as ‘never’ or ‘always’ |
| Avoid jokes, sarcasm, and edgy comments |
| Ask for breaks if needed to keep from becoming inattentive |
| Carefully examine documents, reports, etc. before answering opposing counsel’s questions about them |
| Ask for clarification of confusing questions |
| Remember that nothing is ‘off the record’ |
| Don’t waive your right to read and sign the deposition transcript |
Keep your guard up
Don’t allow yourself to be distracted if op-posing counsel jumps from open-ended questions to clarification questions to “pinning down” questions. Using an erratic approach could be part of opposing counsel’s strategy. Answer only the question asked, and give the shortest correct answer to each question.
Opposing counsel may ask a question in a way that suggests substantial confusion or misunderstanding. If this confusion does not affect your testimony, you don’t need to clear up matters for opposing counsel. If, for example, opposing counsel asserts that one of your statements was contradictory, an appropriate response may be simply, “No, it wasn’t.” It is opposing counsel’s job to explicate further details.11
Opposing counsel may approach the deposition with a particular demeanor—such as friendly or eager to learn—in an attempt to get you to let down your guard and speak more freely (Box 2).
Particularly in a full-day deposition, the greatest likelihood of making mistakes begins around 4 pm. Indeed, some attorneys may reserve especially important questions for this time period, hoping that the witness will be less guarded. Be sure to start the day well rested, and ask for breaks if fatigue be-gins to affect your concentration.