Updated: Feb 8
You have been subpoenaed (called / volunteered) to give testimony at a deposition for a pending case; and ultimately at trial. You have never been involved in the legal process and are apprehensive.
What you should expect, and what is expected of you as a witness:
DON’T PANIC. A deposition is nothing but a fact-finding tool. You are asked to give oral testimony, which is then recorded (usually by a court stenographer) and memorialized in writing. You will usually find yourself in a room at one of the participating attorney’s office, or on occasion at the courthouse. In attendance, beside you, will usually be the attorney for the Plaintiff, the Plaintiff, the attorney for the Defendant, the Defendant, and the court stenographer. Of course, if there is more than one Plaintiff or Defendant, or the attorney has any assistants, the room can fill-up rather quickly. In most instances, you will not find other “witnesses” in the room (as your testimony might “taint” their testimony). Inclusion of other attendees can be waived by agreement between the attorneys. If you feel uncomfortable with another witness in the room you can ask that they be excluded; however, any parties to the action maintains a right to be present and cannot be excluded.
Make sure you are relatively comfortable. You will usually be given an opportunity to call for a “break/recess” at any time it is needed (so long as it is not disruptive, nor causes unreasonable delay). However, once the questioning begins, you will not be able to speak with counsel regarding the content of your testimony, until the deposition is concluded.
Once you are “sworn in”, (a requirement to assure that you are giving testimony with the knowledge that you are doing so under the penalties of perjury), the questioning attorney will usually begin, by giving you a brief explanation as to why you are there and the rules by which the deposition will be conducted.
You will then be asked questions, one at a time (hopefully), for which you are expected to respond. Unless there is an objection (and many times, even if an objection is made for the record) you are to give your response.
Your responses should be given, keeping the following in mind:
Think before responding.
Respond to the question being asked, not the question you wanted to be asked.
If you don’t understand the question being asked, speak up and ask that the question be rephrased.
TELL THE TRUTH.
If you don’t remember, don’t make things up. Say you don’t remember or recall that which is being asked.
Guessing or speculating is a no-no. (Unless, directed to do so).
It is the questioners job to get the information out of you, so do not volunteer information not requested.
Wait until the complete question is asked, even if you can anticipate what the entire question will be, before you give your answer.
Answer a yes or no question with “yes” or “no”.
Answer with words, not sounds, or a shake of the head, as the court stenographer needs to record your verbal responses.
If a question requires a “choice”, and no choice is appropriate, say so before choosing an option.
Try not to answer questions with “absolutes” like “always” or “never”.
If asked to respond to questions requesting “everything you may know” about something, preface your answer with “to the best of my recollection at this time…”
Don’t assume anything. If you must, preface with a statement that clearly states those facts which you are assuming.
Ask for those documents or things which might assist you in answering the question posed, prior to giving your answer to the question. (Don’t take things out to refer to unless you were requested to bring said item with you to the deposition. This includes your cell phone (especially if you don’t want the contents therein to be reviewed or read by the questioner, or included as evidence)).
Remember, anything you say at the deposition can be used later, at trial, to “attack” your credibility.
Should you believe that you need to hire independent counsel, to protect your interests at the deposition or trial, and you are in New York or New Jersey, feel free to contact Glenn P. Milgraum, Esq. by calling 973-812-8660 or by email at: Disputelaw@aol.com.
* Nothing herein should be construed as legal advice. You should always consult and/or retain a lawyer regarding any legal matter.