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87 Rules for Deposition Witnesses
by Stuart M. Israel
Editor’s Note: We hope this article, reprinted by permission from ABA’s GP Solo, Vol. 19, No. 2, March 2002, will be useful. We don’t have room for all 87 rules, but will post them all online and will continue it in the May issue.
1. Tell the truth.
2. Listen to the question. Pause. Think as long as necessary before answering.
3. Don’t pause too long before answering.
4. Understand the question. Don’t answer unless you do.
5. If you don’t understand the question, say so. Ask the questioner to explain, repeat, or rephrase.
6. Answer clearly and directly.
7. If you don’t know, say "I don’t know." If you don’t remember, say "I don’t remember."
8. Don’t confuse "I don’t know" with "I don’t remember."
9. Answer "yes" or "no" if appropriate.
10. Don’t answer "yes" or "no" if the question can’t be answered accurately with yes or no.
11. Don’t speculate or guess.
12. Speculate or guess if asked, but qualify your answer by identifying it as speculation or a guess.
13. If you are unable to speculate or guess, say so.
14. Don’t assume.
15. Assume if directed, but qualify, e.g., "At your direction, I am assuming that the car was traveling at 60 mph even though I have no knowledge of the speed. Based on that assumption, my answer is...."
16. Be positive, assertive, confident, certain, and precise.
17. Don’t give equivocal answers like "possibly" and "probably" when you should be positive, confident, certain, and precise.
18. If you can’t be precise, and must approximate, say so: "It was around 3 p.m."
19. Beware of questions that contain equivocal words like "possibly" and "probably."
20. Answer narrowly. Answer only the question asked. Don’t volunteer.
21. Where appropriate, volunteer.
22. Where appropriate, rephrase the question as part of your answer ("Q: Isn’t it true the car was blue? A: It was blue, but it wasn’t a car. It was a pickup truck").
23. Don’t let the questioner put words in your mouth ("Q: Isn’t it true the car was blue? A: No. Q: What color was it? A: I would call it aquamarine").
24. Don’t ask the questioner questions about the questioner’s questions.
25. Don’t feel obligated to fill silences.
26. Don’t answer a question with a question, rhetorical or otherwise.
27. Don’t think out loud.
28. Don’t be apologetic or self-deprecating. ("Oh, I should know the answer. My memory is going.")
29. Answer; don’t offer editorial comment. ("That’s a good question." "I’m glad you asked me that question.")
30. Don’t exaggerate or overstate.
31. Be succinct.
32. Remember the transcript. Enunciate. "Uh-huh" can be erroneously recorded as "un-unh" and vice versa. Nonverbal communication—body language, gestures, tone of voice—does not make the transcript.
33. Don’t use formulations that dilute your credibility. If you preface your answer with "frankly," you suggest that you may be other than frank when giving answers not labeled as frank.
34. Stick to the point. Don’t respond with extraneous details.
35. Give complete answers. Don’t omit important details.
36. Pay attention. Focus. Concentrate.
37. Listen to every objection. Stop talking when one is made. Think about the objection.
38. After an objection, wait for my instruction, not the questioner’s.
39. If I instruct you not to answer, follow my instruction. Don’t answer. If I instruct you to answer, answer, but follow the rules; i.e., listen, pause, think.
40. Be calm. Be controlled. Don’t get angry. Don’t ventilate.
41. Don’t argue with the questioner.
42. Be serious. Your testimony is no place for humor, sarcasm, or irony.
43. Beware of unfamiliar terminology in questions.
44. Use terminology that is comfortable for you. Answer "in your own words."
45. Don’t use offensive language. Use profanity only as appropriate.
46. Don’t let the questioner interrupt you.
47. Don’t interrupt the questioner. Listen to the entire question.
48. Look the questioner in the eye while being questioned and while answering.
49. Remember the transcript. You are dictating. Watch the court reporter. Make sure the court reporter hears your answers.
50. Don’t look at me as if you need help answering.
51. Correct mistakes. If you realize you have been inaccurate or incomplete, say so.
52. Request recesses: bathroom breaks or time for stretching, a cigarette, a cup of coffee.
53. Don’t get wired on caffeine.
54. Don’t smoke, chew tobacco, or use snuff while testifying.
55. Don’t drink alcohol before (or during) your testimony. Don’t use drugs, prescription or otherwise, that will interfere with your performance.
56. Don’t chew gum or eat candy, or anything else, while testifying.
57. Turn off your cell phone. Turn off your pager.
58. Be on your best behavior. Don’t be arrogant, flippant, hostile, evasive, nasty, or superior.
59. Be yourself.
60. Dress appropriately.
61. Keep in mind that no matter how pleasant the cross-examiner is, she has interests different from, and likely hostile to, your interests. Be civil, but business is business.
62. If useful, write notes outlining your answer before you give it, to make sure it is complete and organized. Don’t write anything you don’t want the cross-examiner to see.
63. Beware of questions that assume facts, as in, "Have you stopped beating your spouse?"
64. Beware of questions that require a choice between alternatives selected by the questioner, such as, "Was the light red or green?" If appropriate, answer "neither" and wait for the next question.
65. Beware of questions that purport to summarize or rephrase your earlier testimony.
66. Beware of compound, multiple, vague, or ambiguous questions.
67. Beware of questions about what "might have," "could have," or "must have" happened.
68. Beware of questions that use absolutes like "never" and "always."
69. Don’t answer with absolutes like "never" or "always" unless you are absolutely sure.
70. Nothing is "off the record," even if the court reporter is not recording.
71. Don’t object. Be the witness, and let me be the lawyer.
72. Beware of questions that foreclose later recollection, like "Have you told me everything about the events of March 15?" Answer, "I told you everything that I recall right now."
73. Be assured it is proper that you prepared and discussed your testimony with me.
74. Don’t answer questions about a document until you have read the document.
75. Take as much time as necessary to read documents that you are questioned about.
76. Don’t assume anything about the authenticity of a document. Check it. Look at dates and signatures. Make sure all the pages are there. Don’t identify it unless you are positive.
77. State appropriate qualifications regarding your review of a document, like, "This is a 57-page document. I’ve only had time to skim a few pages. If you want me to review it thoroughly so I can answer your question definitively, we should go off the record for a few hours."
78. Keep in mind the difference between what you know, what you’ve inferred, what you’ve assumed, and what you’ve been told. Keep in mind, too, when you learned what you now know.
79. Don’t volunteer or promise to do anything later. If the cross-examiner wants you to search for documents or provide names, the request should be directed to me. Respond: "Why don’t you make that request to my lawyer? That’s why he gets the big bucks."
80. Don’t discuss confidential business in the hall, the elevator, the stairwell, the cafeteria, the restroom, or anywhere else that you might be overheard.
81. Relax, but keep that edge.
82. Don’t relax. Stay wary and vigilant. Keep those critical faculties in high gear.
83. Beware of the mid-afternoon doldrums. Don’t lose your concentration because of fatigue or boredom. Take a break to regain focus.
84. Don’t be overwhelmed by the fact that I’m giving you 87 rules, some of which contradict others.
85. Break the rules if you have a good reason.
86. It’s not just you. Testifying at a deposition is an unusual, artificial, disconcerting experience for everyone, and preparing for a deposition is hard work.
87. Don’t screw up.