13 Do’s And Don’ts For Witnesses In Deposition

Each and every witness in deposition need to understand the do’s and don’ts of the deposition process

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1. TELL THE TRUTH. Besides the fact that a witness is legally required to tell the truth, the truth is always the easiest to remember. The truth makes you or your witnesses’ testimony consistent with the story that you, the client, is telling the jury.
2. LISTEN TO THE QUESTION. This is actually harder than it seems, particularly when you or your witness is nervous. But you or your witness must be sure what the question is before answering. If the witness doesn’t understand the question, he should tell the defense lawyer that he didn’t understand the question and please ask it in a different way. A witness should never try to figure out what the question should be. If you or your witness is incorrect about where the question is going, you or your witness may be answering the wrong question and giving the wrong answer.
3. PAUSE TO CONSIDER THE QUESTION BEFORE RESPONDING. Your witness should always pause and think about the question before responding. You or your witness should ask themselves, “Now, what is the defense lawyer asking me?” A pause also gives your lawyer time to object if it is an improper question.
4. YOU OR YOUR WITNESS SHOULD MAKE SURE SHE AGREES WITH EVERY STATEMENT IN THE QUESTION, AND EVERY CHARACTERIZATION OF THE FACTS. You or your witness should understand it is an old defense trick to get a witness to go along with answering a question loaded with inaccurate characterizations or summaries of the evidence. We tell our personal injury witnesses and clients to make sure they agree with every part of the question before answering. Once a witness answers an inaccurate question, those inaccuracies become part of the witness’s statement.
5. NEVER GUESS. Every personal injury witness should know it is alright to say: “I don’t know”, or “I don’t recall at the moment”. A personal injury witness doesn’t have to know the answer to every question—indeed, probably can’t know the answer to every question.
6. ANSWER ONLY THE QUESTION ASKED. The pressure of a deposition may make the personal injury witness feel like he has to explain his answer with unasked for information. You or the witness should not anticipate what might be, to him, the logical next question. Even if the question makes you or your witness think of a half dozen facts and it’s natural to want to blurt out these unasked-for facts—don’t. Otherwise, you (if you’re the witness) or your witness may blurt out something unasked for and harmful to the personal injury case. Answer only the question asked.
7. REVIEW EXHIBITS COMPLETELY. We always review any and all exhibits we think the defense lawyer will present to our witness or client before he gives a deposition. We don’t want anything to surprise you or your witness. So, we prepare you and your witness to fully discuss any photograph, document or another item the defense will present to him.
8. AVOID OFF THE RECORD CONVERSATIONS. Your personal injury witness is there for only one reason: to answer the defendant’s question. We warn our personal injury witnesses to guard against the defense lawyer drawing her into an argument or even just a casual conversation. Even the most casual conversation off the record can be used by the defendant’s attorney which may be useful at the deposition or trial.
9. YOU AND/OR YOUR WITNESS ARE ALWAYS IN CONTROL OF THE DEPOSITION. You, if you’re the witness and your fact witness can control the pace of the deposition, request the defense attorney clarify his questions, ask for a break, and demand that he base his questions on the facts, accurately. You, if your witness or your witness can take a rest break anytime and confer with your lawyer.
10. ALWAYS LISTEN TO YOUR LAWYER’S OBJECTIONS. You or your witness can learn by paying attention to your attorney during the deposition. Do not answer if your lawyer tells you not to answer.
11. DO NOT TRY TO WIN THE CASE. Even the most important witness cannot win the case alone. Some witnesses feel that if they talk a lot and make speeches, they can help. You should stick only to answering the question and let your lawyer worry about winning the case.
12. YOUR WITNESS SHOULD UNDERSTAND THAT YOUR LAWYER CAN NOT INSTRUCT THEM NOT TO ANSWER A QUESTION. If you, the personal injury claimant the witness, your lawyer can instruct you not to answer the question. This is not the case with your witness because the witness has no attorney-client relationship with the fact witness.
13. AVOID EMOTIONAL OUTBURSTS AND/OR AN ANGRY DEMEANOR. One thing the defendant’s attorney will do during a deposition is size up you or your witness. The defendant’s attorney wants to see what you or your witness will be like in front of a jury. If the defense attorney finds it easy to make the witness angry, this will be important information. Juries don’t like angry witnesses.

Whether you think your Tennessee or Georgia personal injury case will settle or you need to go to trial, Dennis and King’s award-winning trial attorneys are ready to help you. Our initial consultations are always free and we will tell you if we think we can settle your case or if you need to take your case to trial. We’ve advised thousands of happy clients on whether to take an insurance settlement offer or go to trial, so put our experience to work for you. You can reach us at (423) 892-5533 or fill out one of chat forms. We can help, even if you don’t hire us.