How should someone testifying at a deposition respond to opposing counsel’s questions?
Remember, this is an adversarial proceeding. Your purpose at deposition is to respond to specific questions, assuming that there is no objection by your counsel. This is not the time to volunteer or provide the opposition with any additional information beyond what the question calls for.
The goal can be accomplished by listening carefully to the question and answering only the question that is asked. If you have any doubt about what you are being asked, tell the opposing counsel that you do not understand the question. If you can answer the question with a simple ‘yes’ or ‘no,’ do so.
It is imperative that you do not guess or testify about matters that are not within your personal knowledge. If you do not remember, say so. It does not help anyone if you speculate. Testify to facts, and never give an opinion unless asked for it. This would be voluntary information, and in the vast majority of cases, it is not helpful to your side.
If you are asked about a specific document, ask to see the document prior to answering. Also, if your counsel begins to speak, stop testifying. Your counsel will advise you if you can continue your answer.
The opposition may attempt to summarize your testimony or interrupt you. If the summation of your testimony by the opposition is not exactly true in all respects, say you do not agree with the summation. If you have been interrupted while giving an answer, advise counsel that you have not finished your answer and insist upon finishing. At least make the record clear that you have not fully answered the question.
At any time during the deposition, you may request to consult with your attorney. However, this should be done only as a last option.
It is best to be polite and courteous to the opposition. If the opposition is rude or discourteous, let your lawyer handle those issues. Your job is to stay focused, listen to the questions and provide brief and truthful responses. The failure to tell the truth not only exposes you to potential criminal prosecution for perjury but also will undoubtedly seriously damage your case.
John H. Cowley Jr. is an executive partner with Secrest Wardle. Reach him at (248) 851-9500 or [email protected].