HOW TO TESTIFY AT A DEPOSITION

an Essay by Glenn C Nunes

A deposition is one of the stranger experiences in civil litigation. You may be sitting in a conference room rather than a courtroom. There may be no judge. The lawyer asking the questions may be friendly. Everyone may have coffee. If the deposition is remote, you may be sitting in your own home.

Do not let the informality fool you.

A deposition is sworn testimony. A court reporter is making a word-for-word record of what you say, and often a video camera is recording too. That record may later be used to investigate the case, evaluate settlement, support or oppose a motion, or challenge your credibility if your account changes. In some circumstances it may be read or played to a judge or jury as your testimony. Months or years from now, someone who was not in the room will read your words without your tone, your expression, or the context that seemed obvious when you spoke.

For most witnesses, though, the hardest part of a deposition is not the law. It is learning to communicate differently than people normally communicate.

Ordinary conversation rewards speed, cooperation, approximation, storytelling, politeness, and filling silence. We start answering before the other person finishes because we can tell where they are going. We answer the question we think was meant. We nod. We agree with someone's summary of what we said even when it is not quite right, because correcting it seems petty. Depositions reward something different: careful listening, accuracy, patience, and a willingness to stop talking when the answer is finished.

That does not mean becoming evasive. It does not mean trying to outsmart the lawyer asking the questions. It does not mean saying "I don't remember" whenever a question becomes uncomfortable.

It means understanding your actual job.

Your job at a deposition is not to win the lawsuit then and there. It is not to defeat the questioning lawyer. It is not necessarily to persuade anyone that your side is right. Your job is to give truthful, accurate testimony about what you actually know and remember. The lawyers are responsible for strategy. You are responsible for accuracy. Almost everything else follows from that.

Witnesses who try to win depositions tend to guess, argue, overstate, and volunteer. A truthful fact that hurts can be explained or weighed against other evidence. An inaccurate answer creates a second problem on top of the first: now the question is not only what happened, but whether you can be believed.

It helps to think about testimony at three levels: the individual answer, the sequence of questions, and the record that survives the day. This essay takes them in that order, after a word about what to settle before the questions begin.

Part One: Before the Questions Begin

Understand your role

Your role shapes what the lawyers want from you.

• If you are a party, assume the other side may use your testimony against you in motions or at trial. This essay cannot prepare you for the themes of your case. Do that with your lawyer.

• If you are not a party, your deposition may become your trial testimony if you are unavailable later.

• If you are designated to testify for an organization, you may have to testify about information reasonably available to the organization, not just what you personally experienced. That requires real preparation. On a topic you were designated to cover, ‘I don’t know’ can be treated as the organization’s answer, not merely yours.

• If you are a designated expert, this essay is not your guide. Expect questions about your assumptions, methods, and fees, and do not wander outside your field.

Whatever your role, the communication habits are the same. The preparation is not.

But before you prepare at all, one question deserves an answer. 

Whose lawyer is in the room?

Do not assume the lawyer preparing you is your lawyer. That lawyer may have scheduled the meeting, may sit beside you at the deposition, or may be paid by your employer, a trust, or an insurer. None of that settles the question.

There are three possibilities:

• The lawyer may represent you. Your conversations are then ordinarily privileged, and the privilege is yours.

• The lawyer may represent an organization or office you are connected to, such as your employer or a trust you administer. The privilege then usually belongs to the organization, which can waive it even if that hurts you.

• The lawyer may represent someone else entirely. Your conversations are then generally not privileged, and you may be asked about them at the deposition.

If the answer is unclear, ask:

• "Do you represent me personally? If not, whom do you represent?"

• "Who controls the privilege over what I tell you?"

• "What happens if my interests differ from your client's?"

• "Should I have my own lawyer?"

These are not hostile questions. A good lawyer will expect them.

Employees are the most common source of confusion. Company counsel ordinarily represents the company, even when counsel prepares you and sits beside you. If you hear a lawyer say, "I represent the company, not you," take it at face value.

The point is not to distrust lawyers. It is to understand the relationship before relying on assumptions about loyalty or confidentiality.

If you do not have a lawyer

Many witnesses, especially non-parties, are deposed without counsel of their own, and that is often fine. But every lawyer in the room represents someone else, and none of them is your adviser, however courteous.

If your testimony could expose you to criminal, professional, or personal liability, or involves confidential or privileged information, get independent advice before the deposition, not while a question is pending.

If a truthful answer could incriminate you, the Fifth Amendment may apply in a civil deposition. You generally cannot refuse the entire deposition. The privilege is asserted question by question, and invoking it can have consequences in the civil case that vary from court to court. Do not decide that while a question is pending. Get a lawyer first.

Preparation is appropriate. Rehearsed testimony is not.

People sometimes worry that preparing for a deposition means learning what to say. That is not good preparation. Good preparation helps you testify more accurately. It does not produce testimony someone else has selected for you.

Preparation may include reviewing documents, learning how the process works, and practicing difficult questions so that you discover bad habits before they appear on the record. It should never include being told what the "right answer" is. If anyone suggests you say something you know is untrue, or claim not to remember something you do remember, do not. The consequences of false testimony fall on you.

You may be asked at the deposition whether anyone told you what to say. Answer truthfully. If a lawyer prepared you, the true answer is often that you were told to listen carefully and tell the truth. If no one prepared you, say that.

Documents you review to refresh your memory may have to be produced to the other side. If you have a lawyer, let that lawyer guide what you review. If you do not, do not start reviewing a pile of case documents on your own just because you have been told to prepare.

Reviewing documents can create false confidence

Memory is not a recording. People reconstruct past events using information they learned later, usually without noticing. Read an email enough times while preparing and its contents can begin to feel like a personal memory.

That feeling deserves suspicion. The document may be accurate, but your sense of remembering may come from the document rather than the event. The same thing happens with accounts you heard from others and have turned over many times since.

Suppose a meeting took place four years ago. Before the deposition, you review an email you wrote about it, dated March 10. Several different truthful answers are possible:

"Seeing this email refreshes my memory. I now remember the meeting."

"I remember the meeting, but not the date. The email indicates it was March 10."

"I don't independently remember the meeting, but I can see that I wrote this email about it on March 10."

Those are not interchangeable. There is nothing defective about the last one. In many situations it is the most accurate testimony available, and it is more credible than a memory manufactured from a document.

Part Two: The Individual Answer

Listen to the entire question

The second half of a question can change the first half.

"You never spoke with Mr. Jones—"

may eventually become:

"—after January 15, correct?"

Lawyers often build questions carefully. One adjective, date, limitation, or assumed fact may be the whole point. Let the lawyer finish.

Then pause

A short pause before answering may be the single most useful mechanical habit a witness can develop. It gives you time to ask yourself:

• What exactly was the question?

• Do I actually know the answer?

• Am I remembering, assuming, estimating, or guessing?

• Does the question contain more than one proposition, or an assumption I do not accept?

• Has the wording changed from the previous question?

If you have a lawyer, the pause also gives your lawyer a chance to object before you begin speaking.

The pause matters most when the questions come quickly. The lawyer controls the speed of the questions. The lawyer does not control the speed of your thinking.

Make sure you understand the question

Do not answer a question you do not understand. You can ask:

• "Could you rephrase that?"

• "What do you mean by 'regularly'?"

• "Which meeting?"

• "Are you asking what I personally knew, or what the company knew?"

Witnesses sometimes worry that asking for clarification will make them look difficult. Usually the opposite is true. There is nothing impressive about confidently answering a question you misunderstood.

Know the source of what you are about to say

Witnesses often feel pressure to have an answer for everything. That pressure is unnecessary.

"I know," "I remember," "I don't remember," "I don't know," "I think," "Someone told me," "The document says," and "My best estimate is" each describe a different source and degree of knowledge. Use the one that is true.

• If you learned about an event from a coworker rather than seeing it, say so.

• If you are estimating, call it an estimate. Do not let a lawyer's "More than ten feet? Less than fifty?" pull you into precision you do not have.

• If you are testifying for an organization, keep clear the difference between what you lived through and what you learned in preparing to testify.

"I don't remember" deserves particular respect. It is a proper answer when true and an improper one when used as a shield. It is also not free. A memory that surfaces in detail for the first time at trial will be compared with the deposition where you said you did not remember. If a document is put in front of you, say whether it actually refreshes your memory. Do not leave ‘I don’t remember’ sitting next to a document that does.

Put simply:

Do not convert an inference into a memory.

Do not convert a habit into certainty.

Do not convert a record into personal recollection.

Do not convert uncertainty into precision because the lawyer asks for an exact number.

Answer the question asked

“Answer only the question asked” is familiar advice, and it has value. If you are asked, “Did you attend the meeting?” and you did, “Yes” is the answer. You do not need to add who was there, what was discussed, or whom you called afterward. All of that becomes new material for questioning. It is not your job to manage how a later reader might use a short, true answer.

A bare yes or no is wrong when it is false. “Did you approve the proposal?” is not answered by “Yes” if what you wrote was “Looks fine to me if finance signs off.” The accurate answer is what happened: “I said it looked fine if finance signed off.”

That is not an invitation to tell the rest of the story. Answer the question that was asked. If a one-word answer would state something untrue, use the words that make the answer true. Then stop.

When the answer is finished, stop

The questioning lawyer may say nothing. You may feel an almost physical urge to keep talking. Resist it.

Silence is not a question.

Silence is a legitimate interviewing technique, and it works because people find it uncomfortable. You do not need to respond defensively. Just do not mistake silence for a request for more testimony. If your answer is complete, wait.

Look inside the question

Many questions carry more than they seem to ask.

Leading questions. "You received the email before the meeting, correct?" The grammar invites "yes." That does not make the proposition true. Your task is not to resist a leading question but to decide whether the proposition inside it is accurate. If yes, say yes. If no, say no. If it is partly accurate, say which part.

Built-in premises. "After you decided not to report the problem, whom did you speak with?" Answering "John" may be heard as accepting that you decided not to report it. If you did not, say so first. You do not need to parse every sentence like a contract. You only need to notice when a question contains a fact you do not accept.

Compound questions. "You knew the machine was defective and decided to use it anyway because you were behind schedule, correct?" That is three propositions. You might agree with one and disagree with two: "I knew there had been an issue with the machine. I don't agree with the rest of the question." Or ask that it be broken up.

Always and never. A single exception can make an absolute answer wrong. "I never discussed that with her" and "I don't remember discussing that with her" are different statements. Use absolute words only when you mean them literally. If you truly know something never happened, say so.

"Is it possible…?" Almost anything is possible, and "I suppose it's possible" can later be quoted as conceding that the thing could have happened. Answer honestly, but preserve the distinction. A good answer might be: "Almost anything is possible but I have no memory of it and no reason to believe it happened."

"Why?" Lawyers ask why because the answer reveals reasoning, motive, and facts no one knew to ask about. Give the actual reason you had at the time. People often become much more sophisticated about a decision after a lawsuit begins. Do not let a better reason constructed in hindsight replace the one you had.

"Is that all?" You say you rejected a proposal because it was too expensive. "Is that every reason?" That question closes the list. If you say yes and later mention safety concerns, the new reason may be treated as an invention. If those are all your reasons, say so. If they are only all you remember right now, say that instead.

Part Three: The Sequence

Every question is a new question

Lawyers often build a line of questioning through short propositions:

"You were working for ABC Company in 2024?" "Yes."

"You were a supervisor?" "Yes."

"You supervised the warehouse employees?" "Yes."

"You ran the weekly meetings?" "Yes."

"Safety was discussed at those meetings?" "Yes."

"You were responsible for making sure the employees understood the safety procedures?"

Pause. That last question looks and sounds like the others. It may not mean the same thing.

The danger is not that repeated yeses hypnotize anyone. It is more ordinary. People fall into conversational rhythm, and after several easy answers the next one arrives before the witness has actually considered it.

Lawyers are taught to build toward an important question through a series of small ones, sometimes called baby-stepping, rather than asking it first. There is nothing improper about that. Your response is not to become oppositional. It is simply this:

Do not answer by rhythm.

The fact that your last seven answers were "yes" tells you nothing about the eighth.

Momentum and commitment

Sequential questioning works in two ways. One is psychological: the pattern makes the next yes feel natural. The other is logical: each answer establishes a fact, and those facts narrow the reasonable answers to later questions.

Lawyers call the logical version funneling, which means moving from broad questions to precise ones. They also call it boxing in, which means closing off alternative explanations one at a time before reaching the central admission.

Neither is improper. Both explain why a question that seems small should still be answered carefully.

Be careful with the lawyer's summary

You give a two-minute explanation. The lawyer responds: "So what you're saying is that nobody warned you."

Is that what you said? If so, agree. If not: "Not exactly. What I said was…"

Lawyers summarize because a clean admission is easier to use later than a long narrative. That is legitimate. But the summary is not automatically your testimony.

When general principles become specific admissions

A lawyer may begin with propositions that seem far removed from the case. Safety is important? Employees should follow safety procedures? Drivers should keep enough distance to stop? Most people agree, because at a general level these statements are true. Then the questions narrow until the principle is connected to the facts of the case.

Lawyers sometimes call this "rules of the road" questioning. A well-known version is the Miller Mousetrap, named for Phillip Miller, the Tennessee trial lawyer who developed it. Its power comes from structure rather than from any single tricky question. The lawyer:

1. identifies a simple rule that a reasonable witness would find hard to reject;

2. gets your agreement;

3. asks you to explain in your own words why it matters;

4. explores the danger of breaking it;

5. confirms that you and others are expected to follow it; and

6. only then asks whether the rule was followed here.

Imagine a commercial driver:

"Maintaining an adequate following distance is important?" "Yes."

"Why?" "Because you need time to react if traffic slows."

"You personally try to keep enough distance to react safely?" "Yes."

"You expect other professional drivers to do the same?" "Yes."

"Other motorists depend on you doing that?" "Yes."

Notice how easy the sequence is. Notice, too, that the explanation of why the rule matters is now yours, in your own words, and may later be held up against your own conduct. Then the facts arrive, in the same calm cadence:

"You were traveling about 55 miles per hour?"

Perhaps.

"The vehicle ahead was about three car lengths in front of you?"

Pause. Do you actually know that? Is it your estimate, someone else's, or a number that appeared in a report after the fact?

"At that speed and distance, you knew you didn't have enough room to stop safely?"

That question deserves far more thought than the ones before it, even though it was delivered in the same tone. The accurate answer might be yes. Or it might be:

"I agree I was going about 55, but I don't know that the distance was only three car lengths."

Or:

"I know now that I didn't have enough room to stop. I didn't realize that before traffic slowed."

The point is not to avoid the important admission. The point is to give the right one.

The right response is not "never agree"

Understanding this technique can produce exactly the wrong behavior. A witness who decides that every general proposition is a trap, and refuses to agree with anything, becomes evasive and unreasonable. If safety is important, say so. If an accepted practice exists, acknowledge it.

What matters is knowing exactly what you are agreeing to. Principles are easy to overstate. "A company must eliminate every possible safety risk?" No real enterprise can do that. The accurate answer is that risks should be addressed appropriately.

If you are asked whether safety is the most important thing to the company, do not answer as if you speak for the company unless you do. ‘I know what I was told to do. I do not know how the company ranks its priorities’ may be the accurate answer.

It also matters what kind of principle is on the table. A general aspiration, a written policy, an industry custom, and a legal requirement can sound alike. Do not turn one into another. "We had a policy about that. I don't know what the law required" may be the accurate answer.

Hypotheticals

"Assume a driver knew his brakes were failing but kept driving. Would that be unsafe?"

A hypothetical may leave out something important, assume a disputed fact, or use language that already contains a conclusion. Identify what you are being asked to assume. If the assumed facts are enough, answer. If something missing genuinely matters, say so: "I'd need to know the road conditions." But do not use "I need more information" to avoid an obvious proposition.

Facts are not labels

Another shift comes when questioning moves from facts to adjectives. You may agree that the machine was running, that a guard had been removed, that the supervisor knew it, and that the machine kept running. Then: "So that was reckless?"

That is a different proposition. You are not obligated to adopt the lawyer's adjective because you agreed with the facts beneath it. The same goes for careless, dishonest, intentional, unreasonable, negligent, and retaliatory. Some of these are legal conclusions. Some are judgments about another person's state of mind. "I agree with the facts you described. I wouldn't call it reckless" is a complete answer when it is true.

Part Four: The Record

Documents change the pace

When a document is put in front of you, slow down. Do not testify about a six-page email chain after reading the first sentence. Ask yourself:

• Did I write it or receive it?

• Is it complete?

• Are attachments missing?

• Does it actually say what the lawyer says it says?

"This email shows you approved the proposal." Read it. If it says, "Looks fine to me if finance signs off," that may not be an approval.

Context can matter, but "that's out of context" is not a magic phrase. If context changes the meaning, identify what is missing and why it matters. If it does not change the point, do not invent one.

Prior statements and corrections

You may be confronted with something you said before: an email, a text, a declaration, earlier testimony. Do not defend an earlier statement merely because it was yours. If it was wrong, say so. If the two statements are not really inconsistent, explain why. Perhaps a photograph later refreshed your memory.

Consistency is useful. Accuracy is more important.

The same goes for mistakes you catch yourself. Leaving testimony you know is wrong is worse than correcting it. "I need to correct something I said earlier" is always available.

Do not count on reviewing the transcript afterward to fix things. In many courts the right to review must be requested before the deposition ends. Substantive changes have limits and consequences, and the original answer usually stays in the record.

Speak in words

If you shrug, the transcript is blank. Say "yes," "no," "I don't know," or "I don't remember." Do not say "this part here." Say "the second paragraph on page three."

Sarcasm does not survive transcription either. "Oh sure, I was going a hundred miles an hour" reads like an admission.

Do not argue, and do not relax

You can disagree without fighting. "That's not what happened." "I disagree with that characterization." "I don't understand the question." Those answers accomplish more than a debate. If a lawyer becomes confrontational or sarcastic, do not match it.

Some examining lawyers are extremely pleasant instead. They apologize for the questions, joke, or say, "Between you and me…" There is no "between you and me" in sworn testimony.

Do not talk about the case in the hallway, in the restroom, or on your phone. If you do, you can be asked about that conversation. 

If you have your own lawyer, ask that lawyer whether you may confer during a break. Do not confer while a question is pending unless your lawyer is addressing privilege.

Objections versus Instruction Not to Answer

If you have a lawyer, pause long enough before you answer to hear an objection. Listen to the objection and make sure you have understood the question.  If you do not understand you may say so – that goes for all questions whether there is an objection or not.  But if you understand the question, usually you still have to answer after the objection, unless the attorney withdraws the question.

An instruction not to answer is different and is generally limited to privilege, a court-ordered limitation, or a motion to terminate.  If your lawyer gives an instruction not to answer, stop and let counsel handle it.

If a question calls for a privileged communication — what you told your lawyer, or what your lawyer told you — stop and let your lawyer object. Do not explain the substance of the conversation in order to justify the objection.

Fatigue

Depositions can last most of a day. Tired witnesses stop noticing qualifiers, agree more quickly, and start answering just to finish. Take reasonable breaks, ideally after answering the pending question. When the lawyer says "just a few more questions," those questions deserve the same care as the first ones.

The Best Witness Is Not the Cleverest Witness

It is tempting to think that doing well at a deposition means learning how to defeat the other lawyer's techniques. That is the wrong model. Good lawyers know how to sequence facts, use silence, summarize testimony, confront witnesses with documents, and build from general principles to specific admissions. You do not need a competing bag of tricks.

You need discipline.

Listen to the entire question. Pause. Make sure you understand it before you answer. Tell the truth. Do not guess. Distinguish what you remember from what you infer, assume, or learned from a document. Answer the question that was actually asked, accurately, but do not volunteer what was not asked.  Treat every question as a new question. Correct mistakes when you recognize them.

And when you have answered the question, stop.

___________________________________

Reading this essay is not a substitute for preparing with a lawyer on the facts of your case.

This essay provides general information about civil depositions, not legal advice for any particular matter. Deposition procedures, privileges, objections, and a witness's rights and obligations vary by jurisdiction and circumstance. If you face significant personal exposure, privilege questions, or other legal risk, get advice specific to your proceeding.