Personal Injury, Probate, Employment, & Complex Litigation


How to Be a Good Witness At a Deposition

Depositions are a strange beast. They are both a tool to elicit testimony, similar to examining a witness on a witness stand, but also a tool of discovery like interrogatories.

However, unlike at trial, there is no judge to rule on whether the line of questioning is proper. Therefore, in most circumstances, an attorney will merely give an objection and the witness must answer the question (there are rare circumstances in which the attorney may properly advise their client not to answer). The reason for this is because the California Discovery Act limits discovery to any item that is “reasonably calculated to lead to the discovery of admissible evidence.” So as long as the pending question is reasonably calculated to lead to the discovery of admissible evidence, the witness likely has to answer the question.

Depending on the case, this can be a whole multitude of questions that are only tangentially related at best to the core issue of the case. This can be terrifying. I have had many cases where the sexual activity of a couple was only very tangentially related, but because it could lead to the discovery of admissible evidence, my clients had no real choice but to answer all the questions.

The specter of having to answer everything can be terrifying and as such, many people get great anxiety about depositions.

One of the tricks to a successful deposition is to not stress out about them. If the opposing counsel is asking you about something completely unrelated to your case, they are losing. Attorneys oftentimes do this to rattle the other side, but as long as you remain calm and understand what they are doing, it is easy to diffuse the situation, and the opposing counsel will likely move on.

Additionally, many people are fearful that they will get tripped up on an insignificant detail that will derail their case. In almost every situation I have seen, both taking and defending depositions, as long as the witness is truthful, and the detail is not integral to the case, it doesn’t matter if someone misremembers a fact. Again, a lot of the deposition is about discovery of information, not for testimony, so it is possible that the attorney is just trying to confirm the information previously provided to them.

The only problem I have seen on getting tripped up on the details is when someone is lying. While rare, you will sometimes see someone meltdown in a deposition because they are lying about a lot of what they are saying, so once you poke a hole in one of the details, their entire lie deflates. But again, as long as you are truthful—and you always should be—this will not happen to you.

Finally, one of the most important things to remember is to not guess. If you don’t know the answer, or can’t remember the answer, say so. This is not a get out of jail free card to any uncomfortable question (although many witnesses and attorneys think it is) but if something is truly beyond your personal knowledge, the only truthful answer is that you don’t know. If instead of saying you don’t know, you speculate the answer, you can run into very serious problems if the answer is known and provable, it will make you look like you are lying for saying something different (similarly, if you say you don’t know to a question you should, you will have the appearance of lying about everything). While appearing to be lying about one question isn’t necessarily a deal-breaker, if it happens enough, no judge or jury will every believe anything you have to say.


So while depositions are terrifying, as long as you remain calm, tell the truth, and remember that it is okay to say “I don’t know” you should be fine. 

Evan Cote