18 Deposition Tips, Traps, & Tricks

Navigating a deposition is one of the most intimidating things someone unfamiliar with the law can go through. Being pressured by opposing counsel to answer questions accurately down to the last detail is enough to make even the bravest souls break a sweat. Our experienced attorneys provide tips and tricks that can help you prepare for a deposition.

1. Listen to the question carefully and only answer the question that is asked

The last thing you want to do in a deposition is volunteer information to the opposing side’s counsel. The more information you give them, the higher the chance that they will use this information against you and harm your case. The opposing side’s job during a deposition is to get as much information as possible – don’t hand it to them on a silver platter. Keep your answers succinct and ensure they answer the question you were asked.

2. Pause before answering

This is perhaps the best piece of advice we can give someone going through a deposition. First of all, pausing allows the attorney to object. Note that a deponent should not object to questions; this is the attorney’s job. Second, this allows the deponent to make sure the question is complete. Lastly, a pause helps give deponents a moment to compose their answer. This lessens the chance of answering incorrectly or changing an answer, such as “yes, actually, no.” This type of answer severely decreases the credibility of the deponent. Also note that the court reporter will not record a pause or slow speech. Reminder that the parties are at the deposition for the court reporter, not for a conversation. Take your time.

3. “I don’t know” is a perfectly fine answer

If you do not know the answer, it’s ok to say so. Don’t guess, speculate, play a hunch or try to answer something because you feel like you have to. It’s very likely that, if you mess anything up, it’s going to be trying to answer something you don’t know the answer to. Because a deposition is sworn testimony, say what you know to be true without avoiding giving testimony that you do know. You can also say something like, “I don’t know but my best estimate is x.” This allows you to provide an estimate without being held to anything specific. Feel free to answer the part(s) that you are sure about.

4. If you don’t understand a question, ask to have it rephrased

By answering a question, it is presumed that you understood the question. Asking the other side to rephrase a confusing question is best. You can also rephrase the question yourself and answer how you want to answer it.

5. Don’t interrupt the question

Allow the attorney to finish the question completely before giving an answer. Again, this allows deponents to take their time before answering, thinking through their answer thoroughly and giving a level response.

6. Beware of compound questions

Compound or double questions are not only confusing, but also not allowed in a deposition. Your attorney should object to such questions. The questioner is required by law to pose two separate questions in place of the single compound question to obtain the information sought.

Example: The compound question “Isn’t it true that the traffic light in your direction was yellow and you never struck your brakes?” should be broken down into “Isn’t it true that the traffic light in your direction was yellow?” and “Isn’t it true that you never struck your brakes?” with the opportunity for the deponent to respond to each question before moving on.

7. Beware of incorrect information implied by a question

Feel free to correct the opposing attorney on the record about any incorrect information implied by a question to create a clear record.

8. Listen to your attorney

You cannot confer with your attorney while a question is pending, i.e., before you give an answer. If you need to speak with your attorney during the deposition, request a break or to use the restroom to prevent having the request to speak with an attorney on record.

9. Listen to the objections

Your attorney may object to a question in a manner that will assist in providing a clear and accurate answer. For example, if your attorney objects to a question on the basis that the question calls for speculation, this may cause you to consider whether or not you can accurately answer the question. Perhaps the question is whether the opposing party was unhappy about a particular action. Since you’re not the other person, you wouldn’t know whether they were unhappy or otherwise. Rather, all you know is what the other party told you. If the truth is that you do not know the answer to the question, you can answer “I don’t know.”

10. Don’t be afraid to ask to review a document pertaining to a question

A deposition is meant to get a correct answer from deponents, not to test their memory, so a witness is allowed to review referenced documents before giving an answer. Seeing the document may help to refresh their memory. This also makes it clear that they are not trying to evade the question, but rather trying to ensure that their answer is correct. Your attorney can help review documents with you to further evaluate how to respond.

11. Don’t get boxed in by your answer

If giving an estimate, don’t let the other side force into choosing an answer that you are not sure is correct. In other words, don’t allow the other side to restrict your answer.

Example: if you are asked how fast you were going, and you don’t know the exact speed, it’s ok to say you aren’t certain or to give an estimated range. If the questioner further presses and asks “would you say between 40 and 45 mph?” do not affirmatively respond unless you are confident that this answer is correct. Sometimes, being accurate requires admitting what you do and do not know.

12. Feel free to explain your answer

Unsurprisingly, lawyers like asking questions that can be answered by a simple “yes” or “no.” Of course, an answer isn’t always this straightforward. It’s important to explain your answer when required to clarify your yes or no answer.

13. Avoid using all-or-nothing language

Words like “always” or “never” are too definite and may lead to questioning of your credibility if the claims they support can be proven false. Saying something like “I don’t recall doing x” focuses on the present issue and preserves credibility. Don’t get trapped by a question that may undermine your credibility.

14. Don’t be afraid to circle back

During a deposition, if an answer comes to you as to a question asked earlier, you are perfectly entitled to go back to the previous question and provide an answer during the deposition. If the answer doesn’t return to you until after the deposition, you may provide the answer to the question through counsel.

Example: “Do you remember when you asked me earlier about the date I was married but I couldn’t remember? Well, now I recall that it was August 15, 1987.”

15. Stay calm and collected

The opposing counsel may ask questions that seem irrelevant or silly, but try not to appear annoyed by the questions or the deposition. Some questions may even be asked just to annoy you or elicit an emotional response. Staying calm and giving honest, thoughtful responses to all questions is the best course of action.

16. Attorney-client privilege

Remember that communications between you and your attorney are privileged, meaning that what is discussed between you and your attorney is off-limits in a deposition. Do not answer any question asking for this type of information. Allow your attorney to object when such questions are asked.

17. Always tell the truth

This one goes without saying, but tell the truth! Nothing ruins a case faster than exaggerating, misrepresenting, or otherwise telling an untruth. Perjury (giving false testimony) is not only a crime but will also likely destroy your case. The opposing party probably doesn’t care about little details, but if you say something contradictory they will use this to undermine your credibility.

18. Communicate only using words

Nodding your head and saying “uh huh” or “nuh uh” may be commonplace in everyday communication but are of little use in a deposition. A deposition is transcribed by a court reporter, so everything must be said out loud. Testimony should be crystal clear so when the transcript is read the answer is obvious.

19. Notes and deposition preparation may be discoverable

Preparing for a deposition can be a good thing, but your preparation may be itself discoverable. For example, if you write down notes, or review documents, the opposing attorney might ask you about your preparation. By contrast, communication with attorneys to prepare for a deposition would not be discoverable. If you do take notes, make sure that those notes cannot be misunderstood, since the opposing attorney may be interested in creating a false narrative about your case.

Contact an Experienced California Litigation Attorney

If you have questions about how to prepare for an upcoming deposition, you are not alone! The attorneys at Talkov Law have helped countless clients throughout the deposition process, including real estate partition actions. To speak with an experienced litigation attorney at Talkov Law, contact us online or by phone at (844) 4-TALKOV (825568)

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