8A: Testifying At Deposition
What Is A Deposition?
A deposition is the taking of testimony in an informal setting. It is used by lawyers to test witnesses (including parties), to see how they will do in court, and to try to determine the facts surrounding a case. At the beginning of a deposition a witness is placed under an oath which bears the same solemnity, and the same penalties of perjury for its violation, as if the witness is in a court of law.
The attorney taking the deposition poses questions, each of which the witness’ attempts to answer. Opposing counsel and the witness’ attorney have the opportunity to make objections for the record at any time. In certain instances a witness will be instructed not to answer a question until its propriety is determined by a magistrate or discovery commissioner.
Everything which is said in the room is taken down by the court reporter. Eventually it is prepared in booklet form. The witness then has an opportunity to make changes in the testimony. If the change is one of substance as opposed to form, any party may comment on them at trial to demonstrate lack of perception, memory or truthfulness.
How To Make A Good Record
The most important thing for a witness to do is maintain a clear head, and to concentrate on understanding the meaning of a question and providing an accurate answer. A few simple rules may help you:
1.) Always pause after a question is asked. Take your time to think about it. This gives you a chance to make sure you understand the question, and it gives your attorney a chance to object if the question is somehow unfair. Remember, the record of the transcript will not show that you sat for thirty seconds without saying a word before you uttered a well phrased and accurate answer. If any counsel comments on your pauses it is fair to ask, “Do you want me to answer without being sure I understand your question and am providing the most accurate answer?”
2.) If your attorney starts to talk, remain silent. Listen to what your lawyer says, and unless you are told by your attorney to go forward and answer the question, don’t say anything.
3) Unless you are absolutely sure you understand the meaning of a question, don’t answer it. Ask for clarification. You may also clarify the question in your answer by defining terms. Thus, you might say, “If by ‘the car’ you mean my 1975 Ford, than the answer is yes.”
4) If you don’t know the answer to a question, do not guess without making that part of the record. It is perfectly all right to say you don’t know something if you indeed have no idea of the answer. If you have a reasonably good idea of the answer but are not certain, it is all right to say, “I could speculate if you would like me to.”
5) Remember that the reporter can only take down one speaker at a time and that he or she cannot record your physical gestures or grunts. If you want to physically describe an object or event you may make a verbal description (e.g. “It was a red painted metallic cylinder approximately two feet high, and appeared to be a fire hydrant,”) or you can ask for a piece of paper to draw a map or other rendition to be attached as an exhibit to your testimony.
6) A common error is for witnesses to grunt an answer (e.g. “unhuh”). Try to say “yes” or “no.” It makes for a better record. If you have to expand on your answer to make it accurate, go ahead, but avoid narrative answers. Make opposing counsel ask the right questions to get the full story. If your lawyer wants to cover an area where something failed to come out, the questions may be asked on cross-examination.
7) If you are in any way upset, don’t feel well, or feel you are being harassed go ahead and say so. If you need a break, ask for one.
8) At any time, you may ask for a break to consult your attorney. All communications with your lawyer are privileged, which means you do not have to reveal them to anyone.
9) As in any phase of the news industry, accuracy is the most important thing. You take an oath to tell the truth, the whole truth, and nothing but the truth. Do your best to do so.
8B: Testifying In Court
Standards Of Appearance
A pleasant, helpful and sincere manner, neat grooming and conservative clothes help make an effective witness.
Cooperating With Your Lawyer
Remember, your attorney is there to protect you. Before you appear, your lawyer will meet with you to give you an idea of the kinds of questions he or she expects to ask and what answers are expected. If any of those expectations are wrong, correct them so your attorney knows exactly what answers will be given.
Your lawyer will also try to help you anticipate at least some questions by opposing counsel and to help you prepare the best possible answers.
When you are questioned by an attorney who did not call you as a witness (or if you are designated as “hostile” to the person who called you), the questioner may use “cross-examination.”
Normally in a direct examination a lawyer may not “lead” a witness. That means an attorney may not ask a question which suggests its answer. An example might be, “And then you crossed the street?”
On cross-examination an attorney may lead. This can be an effective means of high-lighting certain facts and of contradicting or forcing cooperation from a recalcitrant witness. Because these questions often appear to require short, “yes” or “no,” answers they may leave you little time to think. Deal with cross-examination by taking your time and by feeling free to say, “To be answered accurately your question requires an explanation.”
How To Be A Good Witness
Much of what was said about depositions applies here, but because you are in front of a Trier of Fact you may have to react a bit faster to questions. Try to remain calm at all times and speak directly to the jury in a jury trial, or to the judge.
While narrative answers are usually a mistake, it may be appropriate to tell your story if that is what is decided by you and your attorney. If your lawyer starts to talk don’t say anything. Just stop, and listen to what your attorney is saying. If counsel objects that a question is misleading or ambiguous it should alert you that a trap is being laid, and that perhaps the questioning counsel is in some fashion misstating the evidence or your prior testimony.