Remember that deposition answers are admissible evidence. Your answers at your deposition are sworn testimony that may be introduced into evidence at trial.
Know your role in the case. The lawsuit does not turn solely on your answers at deposition. Your testimony is significant, but it represents only a portion of the overall defense presentation. Consequently, while it is important that you testify well, you should not feel the entire weight of the case on your shoulders.
Know your audience. Through your answers, you are testifying to the judge and/or the jury, not to the plaintiff or his or her counsel. Your answers should be direct, candid, clear and concise. Your overall presentation as a witness should convey that you are forthcoming, credible and professional.
Be yourself. Do not change your manner of speech or otherwise try to present an artificial image that you believe will advance your position. At the same time, if possible, try to avoid nervous habits or other quirks. Do your best to relax and feel natural while responding.
Do not expect or try to persuade the examiner that your position is valid. If you do so, you will be setting yourself up for disappointment. The examiner is legal counsel for the plaintiff. She is the plaintiff’s advocate. She believes the plaintiff’s version of events and interprets them largely from the plaintiff’s perspective. There likely is nothing that you can say to her that will meaningfully change her opinion of the case (or you individually). Further, even in the rare circumstance where you give testimony that does in fact shake her confidence in her client’s case, you will never know it. Experienced legal counsel will not give you any positive outward indication.
Be prepared. Before you undergo deposition examination, you must take the necessary time to fully prepare yourself. This means devoting substantial time to independent study in addition to time spent in the presence of your legal counsel. Refresh your recollections of the material, understand the plaintiff’s claims and allegations as well as the defendants’ position and counterarguments, and familiarize yourself with the deposition process.
Establish a deliberate method to answering. Listen to the question, ask for any clarification if necessary, pause to consider your answer, and state your answer as succinctly and accurately as possible.
Do not over think at the examination. Witnesses often think too much while under questioning. Rather than simply responding to the question posed, they analyze it from every conceivable perspective trying to anticipate where it may lead. One consequence is that the witnesses’ answers often are not fully responsive to the question posed. This only serves to prolong the examination and make the witness appear to be evasive. Some witnesses unwittingly go a step further. Once they have determined where they believe the question is headed, they attempt to cut it off at the pass by refusing to acknowledge an obvious point.
Exercise control over the examination process. During the examination, you have the right to request a break for any reason, including to consult with your legal counsel. The only rule is that, absent special circumstances, you may not take a break and consult with counsel when a question is pending. You must answer the question and then take the break. If you become uncomfortable during the examination, or for any other reason wish to take a break and/or consult with your legal counsel, you may do so. Simply state that you would like to take a break. You and your counsel will then have the opportunity to briefly confer and address whatever concern you may have.
Listen carefully to any objections that your counsel makes during the examination. After the objection is stated, you must still answer the question. In most instances, the objection is stated to preserve the opportunity to later argue before the Judge that the question was somehow improper. If the Judge agrees, the witnesses’ answer is not admitted into evidence. If the Judge disagrees, the answer is allowed. In either event, the process would be unmanageable if the answer was not already available. Consequently, the only time that you may not answer a question is when your legal counsel instructs you not to answer, and as a general rule the only time that your legal counsel can instruct you not to answer is when the question calls for information that is privileged. Your legal counsel’s objections often are intended to give you some guidance. For example, a not uncommon objection is that the question calls for speculation. The significance of that objection to you, as the witness, is that you should not guess. If you know the answer, provide it. If you do not know the answer, rather than guess, you should state that you do not know.
Remember that you have several checks and balances to make sure that your final testimony is accurate. For your final testimony to be inaccurate, you and your legal counsel must repeatedly fail to realize an error, which is very unlikely. You must testify inaccurately. Your counsel must fail to recognize the inaccuracy when it is uttered. You must later fail to recognize the inaccuracy when you are provided the opportunity to review the written transcript of your testimony. Finally, your legal counsel must overlook the inaccurate testimony as well when he or she is provided the same opportunity. The point is that you should enter the process with the intent of being accurate the first time around, but with the peace of mind that you will be able to correct minor inaccuracies at a later date.