NOTES ON PREPARING YOUR OWN WITNESS FOR DEPOSITION BY OPPOSING COUNSEL
1. Ask if the witness has ever had his deposition taken before. (The
masculine herein includes the feminine.) Ask if he has ever testified
in court before.
2. Describe what the physical setting will be like: position of opposing
counsel, your position, reporter’s position.
3. Explain the purpose of a deposition: to permit the opposite side to
discover information that may aid it in the law suit; to lay a
foundation for impeaching the witness on the stand. Explain what
impeachment is–use of an inconsistent statement to cast doubt on
credibility. Emphasize the breadth of questioning permitted.
Questions may be asked that seem to him irrelevant, but they must
be answered. Explain that you can instruct him not to answer
certain questions, but that this is unlikely to occur.
Explain that the witness’s duty is to tell the truth to the best of
his ability. Explain that as counsel_ for the company or organization,
you are instructing him that you want him to do no less.
5. Explain to him that he should not be· thinking about shaping his
answers to avoid damaging disclosures. He should leave litigation
strategy .to you, and simply answer the questions honestly. Every
witness I have seen prepared has regarded this as an interesting and
important pt>d.nt–and contrary to their••?xpectatii’.’Qns. He. sho1,1ld not 1 i • , I and need not volunteer infotmat\on if he is f!.ot CJtties tioned about it.
He. should I simply listen carefully_ to t:he questions, answer _truthfully,
and go no :fu?er. Add o\}at he ,shouldn’t worry if all the_’,inforrnation
that is being drawn out oJ: him appears to be damaging, This is the
other side’s deposition. If you see fit, you will ask him to clarify
certain matters at the end of the deposition, but you will not be
trying to prove your entire case at this time.
6. Ae should try to answer truthfully, but briefly. He must listen
carefully to the question, reflect, then ans?ier if he has understood
it. If not, he should simply state that he does not understand the
question. He should not anticipate additional questions in making
7. He must remember that he is speaking for the record. Re wants to
give answers that he can live with in the future.
8. Talk to him about knowledge. A question generally asks him only what
he knows. He does not know what someone else has told him, though
if he is asked what someone else has told him, he can answer that.
Ma.ny quest ions have only three possible answers: “yes, 11 “‘no,” and
·”I don’t know,” (or “I don’t remember”).r
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9. If he is asked a numerical question, he may well not know the answer.
If he is asked to estimate, or give his ·best estimate, he may do
that if he has some basis for it, though he should make clear that he
is only estimating.
10. The deposition may cover large -periods of time. ‘The questions should
specify what period of time an answer is sought. 1£ the question
does not, the witness should ask for clarification or supply a time
frame in the answer.
11. A question may contain an assumption about a matter of fact. If so,
the witness should consider whether he accepts the assumption as a
fact. If not, he should state that he does not, or make clear that
he considers the question hypothetical. Caution him about answering
12. If he is asked about a document, he should not answer until he has
received it and read it over carefully–all of it, not just the part
about which he is questioned.
13. Warn him about answering very broad questions with incomplete answers.
To pick a glaring example, a company’s EEO affirmative action officer
may be asked 11 what he did” in furtherance of the company’s affirmative
action plan. Assuming that he did a large number of things that
could not reasonably be listed or remembered, he must understand how
to keep his answer open-ended. ?. “These are some of the things
I did. I cannot remember the others.” Etc. (Practice questions are
useful to drive home points 8-13.)
14. He may find himself answering a long string of questions “I don’t know”
and begin to feel, or be made to feel by opposing counsel, stupid or
incompetent. Warn him against this feeling, since it may affect his
answers. It is perfectly natural not to know a lot of details. It is
merely a lawyer’s trick for opposing counsel to try to throw a witness
off stride by asking a lot of these questions.
15. Warn him that he may find the opposing counsel irritating. In that
event, his impulse may be to try to retaliate in his answers. Warn
him strenuously against giving in to this impulse, since it will make
his answers careless and less accurate. Tell him that the opposing
counsel may be deliberately trying to anger him for just this reason.
16. Warn him conversely about the danger of finding the opposing counsel
too friendly, which may give rise to a natural impulse to please or
satisfy the opposing counsel. He must maintain his own objectivity
and remember that he is speaking for the record. It is a formal
17. Similarly, warn him that he should not be concerned about pleasing
you in his answers.- 3 –
18. Describe what your own role will be at the· deposition. Warn him
that you may be saying very little. Tell him why this is so: i t is
the opposing counsel’s deposition; your role is to object to
questions that you believe are in improper form, but opposing counsel
is not obliged to rephrase them. Furthermore, you are not usually
trying to Rrove up your case at the deposition.
19. Work out a signal with him for the occ asions on which you wish to
object to the form of a question. ?, placing your hand on his
arm. When this happens, he should not answer the question, but
remain silent until you have spoken and finished your colloquy with
opposing counsel. It is possible, but unlikely, that you will
instruct him not to answer a question.
20. Tell him that the depositions, if long, will be interrupted by short
breaks. He should keep you informed if he is uncomfortable, tired,
etc. You are there to look after such matters, to keep opposing
counsel from harrassing him, etc.
21. Tell him that there may be a number of colloquies between opposing
cou nsel–about documentary production, forms of questions, etc.
These may appear to him to be angry or heated. He is not to concern
himself with them or worry about them.
22. Finally, opposing counsel may ask him if he has discussed his testimony
with you. He should not be embarrassed about answering affirmatively,
since such discussions are perfectly proper. You told him what to
expect at the deposition, that he should answer questions truthfully,