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NINA E. KALLEN
ATTORNEY AT LAW
40 FLORIAN STREET
ROSLINDALE, MA 02131
(617) 363-0547
fax: (617) 344-6041
Click to Email Nina Kallen
PREPARING TO TESTIFY AT A DEPOSITION
What is a deposition?
A deposition is your testimony under oath (subject to the penalties of perjury). There
is no judge present, and the deposition will be taken in one of the attorney's offices
with your lawyer present. You will be asked questions by the opposing attorney. The
official court reporter will take down all that is said.
What are the purposes of a deposition?
The opposing side is taking your deposition for several reasons. First, they want
to find out what facts you have in your actual knowledge regarding the issues in the
lawsuit. Second, they want to pin you down to a specific story so that you will have
to tell the same story at the trial and they will know in advance what your story is
going to be. Third, they want to evaluate you as a witness, both how you come across
as a person and whether you seem truthful.
How should I prepare for a deposition?
Review any documents your attorney tells you to review. Get a good night's sleep beforehand.
Dress in what you would wear to a meeting that your boss's boss will be attending-you
want to look presentable but not so overdressed that you are uncomfortable.
If you are testifying on behalf of a business or organization, you will need to do
additional preparation that your attorney will discuss with you.
Rules for testifying at a deposition
Tell the truth. This is more than a copybook maxim; it is a rule of self-preservation
for witnesses. Not telling the truth can seriously damage or destroy your case. It can
lead to prosecution for perjury.
Listen carefully to the question and answer the question that is asked. Do not
volunteer information that is not asked. If you are asked a yes or no question, answer
"yes," "no," "I don't know," "I don't remember,"
or "I don't understand the question," whichever is the truthful answer. For
example, if you are asked where you live, give your current address. Do not go on to
say that you just moved there or that you will be moving soon.
If you are finished with an answer and the answer is complete and truthful, remain
quiet and do not expand upon it.
Do not try to assist the deposing attorney. You are there to tell the truth,
but not otherwise assist the deposing attorney. Do not tell the deposing attorney what
questions he or she should be asking.
Do not assume you know why a question is being asked.
Do not argue with the deposing attorney.
Disregard the deposing attorney's attitude. Do not pay heed to his or her tone
of voice or attitude. These things are irrelevant.
If you do not understand a question, say so.
Correct mistakes. If you realize that you may have made a mistake in your testimony,
ask to take a break and let your attorney know before the deposition ends. Your attorney
will make sure you have an opportunity to clear up the mistake.
Do not worry about telling your story now. A deposition is an opportunity for
opposing counsel to ask the questions he or she is interested in. It is not the forum
in which you are able to present your side of the story.
Testify only about what you know. Do not guess or state something that you
have heard as something that you know.
Do not expect to testify without the other side scoring points. If the other
side asks questions that call for answers that you believe will harm your case, accept
the fact that every lawsuit has two sides. Do not try to avoid unpleasant answers or,
even worse, lie. Just keep your answers short and to the point.
If your attorney objects, do not answer the question until your attorney tells you
that you may answer. Under the current Massachusetts court rules, attorneys may
object to questions at depositions only in rare circumstances: if the question seeks
privileged information (information that is confidential, such as a conversation you
had with your attorney) or if the form of the question is confusing. Sometimes an attorney
will also object if opposing counsel is harassing you by asking the same question over
and over again, or asking embarrassing personal questions that are clearly irrelevant
to the case. If your attorney objects, do not answer the question unless and until your
attorney tells you to answer.
Feel free to ask to take a break. It is fine to ask to take a break at any
time. Feel free to ask for a break if you are hungry or need to use the restroom. If
you are tired, talk to your attorney about finishing the deposition on another day.
It is better to come back than to give less than your best testimony. However, you should
clear your schedule for the entire day so that you do not have to end the deposition
unnecessarily.
Do not ask to look at any documents that you bring with you to the deposition unless
you check with your attorney beforehand. Any documents that you look at can be made
an exhibit in the deposition, and the opposing attorney will have an opportunity to
examine them and take a copy of them.
Do not make any jokes or sarcastic statements. The most important part of the
deposition is the written transcript that will be made of it. Jokes and sarcastic statements
are easy to misinterpret when they are part of the transcript.
Avoid even the mildest obscenity and avoid absolutely any ethnic slurs or references
which could be considered derogatory.
If there are areas that you consider irrelevant to the lawsuit about which for
a strong personal reason you do not want to testify, let your attorney know beforehand.
One of the purposes of the deposition is for the opposing attorney to get to know your
personal background. Typically depositions begin with questions about your education,
work experience, and family, even if these are irrelevant to the lawsuit. These questions
are common and are not inappropriate. If, however, you have a personal reason to not
want to testify about something (such as if you are in the middle of a bitter divorce,
or you have a child who is very ill), let your attorney know before the deposition begins.
Although opposing counsel has the right to ask questions about your personal life, most
will refrain from doing so if presented with a compelling reason.
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