General rules for testifying at your deposition

As part of the process of resolving your employment lawsuit, the defendant (the party you sued – e.g., your former employer; the harasser, etc.) will take your “deposition.” A deposition is a formal interview in which the defense lawyer will ask you questions under oath. You may have heard that a deposition is your chance to tell your “story.” It is not. The purpose of the deposition is to answer the specific questions asked by opposing counsel; it is not to volunteer additional information. With this cautionary note in mind, consider the following general rules for testifying at your deposition:

Tell the truth. If you fail to tell the truth, your employment lawyer will be forced to correct the record and/or withdraw from the case. Moreover, you will tarnish your credibility, which always harms your case.

Listen carefully. Listen carefully to the question asked by opposing counsel. If you do not understand the question or any word in the question, say so, rather than answering it. Do not attempt to help opposing counsel by rephrasing the question or asking if counsel is “really trying to ask. . . ” If defense counsel asks why you don’t understand the question, do not attempt to explain. Simply repeat, “I don’t understand the question.”

Watch for “yes” or “no” questions. Before answering any question, consider whether it can be answered with a simple “yes” or a “no.” If so, provide only a “yes” or a “no” answer. For example, if you are asked “Do you know what time it is?” you should answer “Yes” or “No.” Only if you are asked the follow-up question “What time is it?” should you give the specific time. On the other hand, if a question cannot be answered with a “yes” or a “no,” you should provide a complete answer to the question asked and not volunteer any additional information.

Do not guess. If you do not know the answer to a question, simply say, “I don’t know,” or “I can’t remember.” Similarly, never attempt to testify about what “probably” happened or what “might have” happened. Do not guess or speculate about the answer to a question. This is particularly true for questions about dates or when something happened. If you guess as to when an event occurred and you are wrong, it will needlessly cast doubt on your credibility. Instead, try something like this: “I don’t have a good grasp on dates, but I can testify as to what happened.” If the events at issue in the case took place a long time ago in relation to the deposition, you should also say something to the effect of, “You know, that happened so long ago that, although I recall what happened, I’m not sure that I can remember the specific dates.”

Watch your temper. Try not to become angry with opposing counsel and don’t argue with opposing counsel.

Stop talking after answering the question asked. When you have completed your answer to a particular question, stop talking. While this may seem like an obvious statement, defense counsel may simply sit and stare at you (knowing that silence is uncomfortable) and wait for you to begin talking again in order to break the silence. Don’t fall into this trap. Wait for the next question.

Do not answer if instructed not to answer. This rule is simple and easy to follow: if your employment attorney instructs you not to answer a question, do not answer the question.

Think before you speak. Remember that your testimony is being recorded. You should scrupulously avoid making any politically incorrect comments or any statements that disparage any group of individuals (e.g., African-Americans, Latinos, Jews, disabled individuals). Similarly, do not make any unpatriotic comments.

Guard attorney-client communications. Do not reveal any conversations you have had with your employment attorney or his or her support staff.

Identify “closure” questions. Listen carefully for “closure questions.” A “closure question” is a question that attempts to prevent you from adding any other information to your testimony. For example, in a sexual harassment case, the defense attorney will say something like: “Have you now testified as to all of the sexual conduct about which you are complaining?” Leave yourself an opening to add additional information by stating, for example, “That is all I can recall at this time.”

Read documents carefully. During the course of your deposition, you likely will be asked to review and identify documents. Always read the document over very carefully. See if it has been changed in any way. See if it is complete or if any pages are missing.

Do not joke. You will not score any points by being witty, humorous or sarcastic. Never joke during a deposition, even if there is an “off the record” discussion. A deposition is a serious proceeding. If you joke, you give the impression that you are not serious about your testimony, and worse, you may say something that will hurt the case.

Do not make friends with opposing counsel. Regardless of how nice or friendly the defense attorney seems to be, he is not your friend. He has one objective—to obtain damaging admissions that can be used to throw your lawsuit out of court.

Do not look to your employment attorney for help answering questions. Do not turn to your employment attorney for help in answering a question or to ask if you should answer. Instead, answer each question confidently, unless your attorney instructs you not to answer.

Recognize and capitalize on opportunity questions. Listen for “opportunity” questions. An “opportunity” question is a question that allows you to deliver devastating testimony that encapsulates the essence of your case. These questions are like a slow pitch down the middle of the plate. You want to hit it out of the park. A missed “opportunity” question can be deadly. The following illustration demonstrates this point:

Example 1:

Opportunity Question Missed

Q. Why do you believe that they fired you?
A. I don’t know. You’d have to ask them.
Q. Did they tell you why they were firing you?
A. They told me that I was being fired because they had decided to eliminate my position.

Opportunity Question Hit

Q. Why do you believe that they fired you?
A. I believe that I was fired because I complained that my boss was sexually harassing me.
Q. Why do you believe that you were terminated for complaining about your boss?
A. Well, I complained just five days before I was fired. The people who made the decision to fire me included my boss and the person to whom I complained. They told me that I was being fired because they had decided to eliminate my position. That didn’t make any sense because I received my annual performance evaluation four months before and got an excellent rating and was told that I was an invaluable member of the team. In addition, I know that they didn’t eliminate my position. They hired someone else to take it over. And, when I first started working for him, my boss told me that I worked for “him” and not the company and that everyone who ever crossed him had been fired.

Example 2:

Opportunity Question Missed

Q. Why do you think that [name of harasser] was harassing you?
A. I don’t know.

Opportunity Question Hit

Q. Why do you think that [name of harasser] was harassing you?
A. He was harassing me because he [wanted to have sex with me] [was mad that I took family leave] [etc.].