There are certain things that I tell witnesses to remember when testifying in a deposition.
1. The Witness’s testimony is under oath. Therefore, the Witness is subject to the penalty of perjury if she is untruthful. An example that most witnesses understand is when I remind them that former President Clinton’s impeachment was not for his sexual improprieties, but for his untruthfulness in his testimony under oath about those improprieties.
2. The deposition will be used to preserve trial testimony. In Hawaii, the deposition testimony of a party may be admitted into evidence even if the party appears at trial. Thus, the deposition transcript may be used in two ways. First, to cross-examine the Witness during her trial testimony. Second, to read segments of the transcript into the trial record even after the Witness testifies. Thus, it is imperative that the Witness is as accurate as possible during the deposition and that she realize that her testimony at the deposition is as important as if she were testifying at trial.
3. The Witness should remember several guidelines when testifying. The first is to speak slowly and clearly. By reacting slowly to the question and formulating a response in a careful manner, the Witness can make sure that she answers only the pending question. Often in conversation, we not only answer the question that is asked, but we add additional unrequested information in our response. In a deposition, the best way to respond to a question is to answer only the question that has been asked.
4. I repeat- answer only the question that has been asked. I cannot stress this point enough. When a witness is deposed, she is in a defensive posture. It is not your job to educate your opponent. You are simply there to answer questions. The easiest way to accomplish this objective is to answer only the question that has been asked. The Witness should listen clearly to the question and answer only that question. The Witness should offer no additional information.
5. The Witness must not speculate. When answering only the question that is asked, the Witness should only give information about which she has personal knowledge. The opposing counsel may ask the Witness to speculate or guess about certain occurrences. If the Witness has no personal first hand knowledge, the Witness should simply say that she does not know. She should not guess.
6. The Witness should be emotionally and physically prepared for an eight-hour deposition. It may not last that long. Prepare for the worst, hope for the best. Although she will be sitting and answering questions, it is an exhausting procedure. She should wear comfortable clothing and be prepared to sit for an extended period of time. Defense counsel should insist on taking breaks every fifty-five minutes even if the Witness claims that she feels fine. The deposition is a marathon, not a sprint.
7. If the Witness does not understand a question, she should ask the examiner to rephrase it. If a witness does not understand a word used by opposing counsel, she should not guess as to its meaning. The Witness should simply ask opposing counsel to ask the question in a different way.
8. During the deposition if the Witness’s attorney objects, the Witness should remain quiet until her attorney has completed his objection. Thereafter, the Witness should not speak until her attorney indicates that it is acceptable for her to answer the question. In a deposition, if the witness speaks immediately after her lawyer objects, and answers despite the objection, the answer will stand. It is therefore imperative that the Witness understand that if her attorney objects to a question, the Witness should refrain from speaking until her attorney indicates that she may answer.
9. The Witness must remember that the opposing lawyer is not your friend (no matter how courteous he may be).
10. Upon completion of the deposition, the Witness will be asked to review the transcript. If she wants to make changes to any answer at that time, she can. Therefore, once the Witness is given a deposition transcript it is imperative that the Witness and her counsel review it for its accuracy.