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Deposition Rules for Witnesses Checklist

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Prepping a witness for an upcoming deposition? Chances are your witness is anxious. As the defending attorney, it’s important for you to prepare them for their deposition so they can be calm, cool and collected. Practical Law provides the following Checklist for a testifying witness to follow:

Speak Slowly and Clearly

  • Answer the questions orally (not with a gesture like a nod of the head).
  • Speak slowly and clearly to help the court reporter accurately transcribe your testimony.

Pause After Each Question
Pause briefly after each question to:

  • Formulate a short, truthful answer.
  • Give me an opportunity to object.

Listen to Objections and Instructions

  • My role at the deposition is to protect you by objecting to improper or inarticulate questions.
  • After I make an objection, answer the question unless I instruct you otherwise. For example, I may state an objection to:
    • the form of the question;
    • the deposing attorney's mischaracterization of your previous testimony; or
    • a question that has already been asked and answered.
  • If you hear me:
    • object to a question, think carefully before answering it;
    • instruct you not to answer a question, do not answer it; and
    • suggest taking a break, agree to take one.

Tell the Truth

  • Telling the truth during the deposition is critical because:
    • you must swear or affirm to tell the truth at the beginning of the deposition, as if you were testifying in court before a judge;
    • lying under oath is a crime;
    • untruthful statements are often revealed by other conflicting testimony or documents;
    • opposing counsel's accusations of perjury can lead to lengthy and expensive motion practice that distracts from the merits of the case; and
    • ethics rules may compel an attorney to inform the court if she knows that a witness has testified falsely.
  • Every case has bad facts. The purpose of this prep session is to determine how to deal with them truthfully during the deposition.

Short Answers Are Best

  • Answer questions with a "yes" or a "no," if possible.
  • Give short answers to questions that cannot be answered with a "yes" or a "no."
  • Do not volunteer information.
  • "I don't know" and "I can't remember" are appropriate answers if they are true.
  • Testify based only on your personal knowledge.
  • Do not guess or speculate.

Remain Composed and Professional

  • Do not be combative or evasive.
  • Ignore arguments or heated exchanges between counsel.
  • Be especially aware of your demeanor if the deposition is being videotaped.
  • Do not make jokes or sarcastic comments because they do not translate well in a written transcript.

Do Not Answer Unclear Questions

  • Do not answer a question that you do not understand or think is unclear.
  • Ask the questioning attorney to rephrase an unclear question before providing an answer.

Ask for a Break if Needed

  • It is critical to stay focused during the entirety of the deposition.
  • You may take a break at any time, except when a question is pending.
  • We will take a break about once each hour.

Read Documents Carefully

  • Read documents in their entirety before answering any questions about them.
  • Be careful when answering questions about documents that you did not author.
  • Pay attention to the dates, authors, and recipients of each email in an email chain.
  • Do not volunteer to look for or produce additional documents.

Concluding Instructions

  • Do not speak to anyone about your upcoming deposition testimony.
  • Do not bring any documents to the deposition.
  • At the deposition:
    • turn off all electronic devices before the deposition begins; and
    • keep off-the-record conversations with the court reporter, attorneys, and other attendees limited to small talk and the weather.

This Checklist is just one of many guides you’ll have access to with Practical Law’s Deposition Toolkit. The Toolkit addresses several key aspects of depositions in federal civil litigation by providing resources on how to prepare for, take, and defend depositions.

Download the entire Deposition Toolkit with your free trial of Practical Law!

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