Instructions and practical advice for testifying at your deposition
An experienced employment lawyer knows how important the plaintiff’s deposition is and, also, how intimidating the deposition process can be for the average person.
Shortly after you retain your attorney, and well before your deposition, your attorney should talk with you about your deposition. This should be just the first of many conversations and preparation sessions.
A smart employment lawyer will do everything possible to make sure you are comfortable as you head into your deposition. In this regard, knowledge is power. The more you know about the process, the easier it will be to relax and focus on your answers to the questions. Below is a sample of a “Deposition Letter” you might receive from your attorney in advance of your deposition. This letter will mark the first official step in preparing for your deposition.
Please carefully review this letter (several times) over the next few weeks and then again in the weeks leading up to your deposition (which has not yet been scheduled) in order to help familiarize yourself with the deposition process. As soon as your deposition is scheduled, we will need to schedule several deposition preparation sessions with you.
As we recently discussed, you should not be afraid of or intimidated by your deposition. It is not an interrogation. It is merely a question/answer session. Specifically, the attorneys for the defendant will ask you a series of questions to find out what you know about your lawsuit. You are allowed to take breaks when you want to, and you are allowed to talk to your attorney when you want to. I will be there, sitting right next to you, and will make sure you are comfortable. It is my experience that people are always a little nervous at the start of the deposition, but that after ten minutes or so, they realize it is not as big of a deal as they thought it was, and settle into a rhythm of answering questions. Before they know it, the whole thing is over.
The remainder of this letter will provide you with a general summary regarding what a deposition is like and the basic ground rules regarding how you should act at the deposition. Again, please read its contents carefully. The more prepared you are in advance, the easier the deposition will be. It’s kind of like a test at school: it’s much better to be over-prepared than under-prepared. If you have any questions, you can always call me.
WHAT IS A DEPOSITION?
A deposition is not a formal proceeding held in a courtroom in front of a judge and jury. Rather, a deposition is an informal proceeding usually held in a large conference room at the office of the defendant’s attorney. There will be a large table inside the conference room. You will be on one side of the table along with your attorney. On the opposite side of the table will be the defendant’s attorney(s). The defendant may also be present. At one end of the table will be a court reporter who will record your testimony on a stenography machine. There may also be a videographer who will record your testimony on videotape.
At the beginning of your deposition, you will be sworn to tell the truth, under penalty of perjury. Then, the opposing counsel will ask you questions and you must answer (unless I specifically instruct you not to). The deposition is not the time for you to tell your story or volunteer any information aside from what is specifically asked of you.
WHAT ARE THE PURPOSES OF THE DEPOSITION?
The are five main reasons your deposition is being taken by opposing counsel. First, the opposing counsel wants to learn everything you know that even remotely concerns your lawsuit. Hence, opposing counsel will ask you questions that appear to relate to your lawsuit (e.g., for how long were you employed; did you receive any performance reviews), as well as questions that do not appear to relate to your lawsuit (name all of your prior employers; have you ever sued anyone; have you ever been convicted of a felony). While many of opposing counsel’s questions may appear as though he or she is going on a blind “fishing expedition,” the courts generally allow great latitude in discovery proceedings such as your deposition. We will object and instruct you not to answer any questions that we believe are impermissible. If we instruct you not to answer a question, you should not answer it. Sometimes, if we instruct you not to answer a question, opposing counsel may ask whether you are following your counsel’s advice and refusing to answer the question. You should say, “Yes.”
The second reason opposing counsel is deposing you is to “tie you down” so that you cannot change your testimony. Generally, once a person testifies one way in a deposition, he or she is not allowed to change that testimony by testifying differently later (e.g., at trial or in opposition to have your case dismissed before trial (a “summary judgment” motion)). For example, if you testify at deposition that your supervisor harassed you on two occasions, the court will not consider your testimony in opposition to a motion for summary judgment that says your supervisor really harassed you on dozens of occasions. Similarly, if you admit at deposition that you were disciplined at work for poor performance and then deny it at trial, opposing counsel will point out the contradiction to the jury and you will lose credibility. As a consequence, it is extremely important that you give your best, most complete testimony at your deposition.
The third reason opposing counsel is deposing you is to try to catch you in a lie and thereby expose you as a “liar” to the jury. For this reason, you must testify truthfully even if you believe your testimony will hurt your case. We can almost always work around the truth (even if it is harmful) or turn it to our advantage. If you lie, however, there will be little I can do to help you. Always tell the truth.
The fourth reason opposing counsel wants to take your deposition is to get admissions from you that can be used in support of the defendant’s inevitable motion for summary judgment. We will address how you can avoid making unnecessary admissions later in this letter.
Finally, opposing counsel is deposing you to size you up as a witness. Will you come across as credible? Will a jury find you sympathetic? Will you appear forgetful? Will you come across as an unsympathetic complainer? Will you crumble in the face of harsh questioning? Do you look in opposing counsel’s eye when answering deposition questions, or do you stare down to the floor or up in the air? During your deposition preparation, I will show you how to testify. However, the most crucial element for a witness to master is simply to believe in himself or herself. Confidence (not cockiness) is critical.
SUBJECT AREAS GENERALLY COVERED IN THE DEPOSITION
Opposing counsel will most likely ask you detailed questions about the following four subject areas: (1) your personal background; (2) your employment with your former employer; (3) the facts and circumstances surrounding the claims set forth in your complaint; and (4) your damages – lost wages and benefits, and emotional distress. Most defense attorneys ask about each of these topics in this foregoing order and do so in a chronological manner, beginning with events that occurred in the past and moving forward to the most recent events. Better defense attorneys avoid asking questions in a predictable manner. That is, they tend to skip back and forth between subject areas and they avoid asking questions in a chronological manner.
Your Personal Background
Opposing counsel will ask you many questions about your personal background, including questions about:
- Where and when you were born.
- Your educational background.
- Whether you have attended any type of training courses.
- Your military service (if any).
- Your employment history, including the name of each employer for whom you have worked since age eighteen; the positions you held; your supervisors; your job duties and responsibilities; your promotions, demotions, salary increases/decreases, evaluations; why your employment was terminated; whether you ever filed a workers’ compensation claim or were injured.
- Where you have lived since age 18 and whether you owned or rented.
- Whether you have been convicted of any crimes.
- Whether you have filed for bankruptcy.
- Whether you have sued anyone or been sued by anyone.
- Whether you have ever been discriminated against, harassed or retaliated against by anyone.
You may not know the answers to some of these questions and that is perfectly acceptable. It is not necessary for you to spend time trying to remember the answers to these questions. Indeed, experienced defense attorneys may skip most of these questions because they are almost completely irrelevant to your claims. However, you should tell me if the answers to any of these questions could even potentially make you look bad or be considered negative. For example, if you were convicted of a crime, terminated from a job, declared bankruptcy, or dishonorably discharged from the military, I need to know about it.
Your Employment with Your Former Employer
Opposing counsel will ask you detailed questions about your employment with your former employer. These questions will generally include questions such as:
- How did you first become interested in employment with your former employer?
- Describe the application and interview process.
- Did you submit an employment application or résumé?
- Did you lie on your employment application or résumé?
- Did you lie during the interview process?
- What were you told during the application/interview process?
- Did you receive any documents during the application/interview process?
- Did you receive a job offer?
- What were you told during the new-hire orientation process?
- Did you receive any documents during the new-hire orientation process?
- Did you receive an employee handbook? Did you read it? Did it have a harassment/discrimination policy in it?
- Did you receive a harassment/discrimination policy?
- What type of training did you receive at your former employer?
- Did your former employer have harassment/discrimination posters posted at work?
- Did you receive any harassment/discrimination training?
- For each position that you held at your former employer, describe your job duties and responsibilities.
- Who were your supervisors, your subordinates, your co-workers?
- How were your performance evaluations?
- Were you disciplined, promoted, demoted?
- Did you receive salary increases/decreases, bonuses?
- What were your hours of employment?
- Where was your work location?
- Did you ever complain to anyone about anything?
- Did you have any friends at work?
- Were you ever injured at work? Did you ever file a workers’ compensation claim at work?
- Why did you quit? Why were you fired?
The Facts and Circumstances Surrounding the Claims Set Forth In Your Complaint
Opposing counsel will ask you detailed and repeated questions about the facts and circumstances surrounding the claims you have set forth in your complaint. As a result, it is imperative that you review your complaint on a daily basis for several weeks leading up to your deposition. You should prepare a chronology or a list of the harassment/discrimination/retaliation that you are alleging in your case. Read this list or chronology on a daily basis for several weeks leading up to your deposition.
More than likely, unless you are really lucky (and opposing counsel is really inexperienced or unsophisticated), opposing counsel will not hand your complaint to you during the deposition and then ask you to describe each of the events listed in the complaint. Rather, opposing counsel will ask you to identify the first time you were harassed, discriminated against or retaliated against and answer the following questions:
- Who did it?
- What specifically was done?
- Where did it happen?
- Why did it happen?
- How did it make you feel?
- How did you respond?
- Were there any witnesses?
- Was it recorded?
- Did you document the fact that it happened?
- Did you report it to anyone at the company (if not, why not)?
- Did you tell anyone outside the company (spouse, parent, child, sibling, other relative, friend, doctor, therapist) about it?
Once you have answered these questions about the first incident of harassment/discrimination/retaliation, opposing counsel will ask you to identify the next incident and to answer all of the same questions about that incident. This will be repeated until you have identified each and every incident.
While it would obviously be best if you could remember the dates and times of each incident of harassment/discrimination/retaliation so that you could answer opposing counsel’s questions in the proper order, this is typically not possible where there are numerous incidents occurring over a long period of time. However, it is absolutely critical for you to be able to recite each and every incident (even if you don’t remember exactly when it occurred) without any prompting from me and without the necessity of looking at your complaint or any other documents. I have found that clients can best prepare for this portion of the deposition by practicing in two ways, both of which involve setting aside some private time each day in the weeks leading up to your deposition. The first preparation method is to simply answer out loud questions that you ask to yourself that are likely to be asked of you:
Q. Please identify each occasion on which you believe you were sexually harassed, starting with the first time that you believe you were sexually harassed.
A. I can’t remember the exact order in which the sexual harassment took place, but these are some examples of the type of sexual harassment I suffered. My supervisor stared at my breasts when he spoke to me. He asked me questions about my breasts—how large are they, do guys stare at them a lot, do I ever not wear a bra. He treated me differently than he treated men. He asked me whether I had a fun weekend with my boyfriend and whether I “got laid.”
The only problem with this method is that if there are multiple incidents of harassment/discrimination/retaliation, you might not remember whether you identified each of the incidents. The second method solves this problem by having you write out each and every incident on a piece of paper (or typing it on a computer) and then comparing the incidents you have listed to your chronology to ensure that you have identified each incident.
Regardless of which method of practice you use, consider the order in which you say or write down the incidents of harassment. The best order is chronologically, if you can remember the dates of the incidents with enough certainty to list them in order. The next way to list the incidents is by severity; list the most severe incidents before the more minor incidents (e.g., “He grabbed my breasts” would be more severe than “He rubbed my back”).
Your Damages—Lost Wages and Benefits and Emotional Distress
The last general area that opposing counsel will cover is your damages (e.g., what you are seeking in your lawsuit). Generally, damages are composed of your lost wages, your lost benefits, and your emotional distress. Lost wages are generally relatively easy to determine for most people who are either paid on an hourly basis or receive a straight salary. For example, if you were wrongfully terminated and you have still not found a new job, you simply take the amount of money you were earning each week at your former employer and you multiply it by the number of weeks since you were terminated.
Pauline Plaintiff earned $600.00 a week as a secretary at ABC Transportation Company, Inc. She was wrongfully terminated 26 weeks ago and, despite her best efforts, she has been unable to obtain a new job. Sally’s lost wages are $15,600.00 (26 x $600.00).
Similarly, if you were wrongfully terminated and you have found a new job but it pays less than your prior job, you simply take the amount of money you were earning each week at your former employer, multiply it by the number of weeks since you were terminated, and then subtract the wages you have received in your new job.
Pritchard Plaintiff earned $800.00 a week as an executive assistant at Global Internet, Inc. He was wrongfully terminated 32 weeks ago. Using his best efforts, he was able to obtain a new job after 10 weeks making $500.00 a week as a secretary. Pritchard’s lost wages are $14,600.00 ((32 x $800.00 = $25,600.00) – (22 x $500.00 = $11,000.00) = $14,600.00).
These calculations can become extremely complicated if you are paid commissions, bonuses and/or if you work overtime at either your former or new employer. You should not spend much time worrying about this subject area, as I will work with you to help you determine your lost wages.
You have a duty to “mitigate your damages.” This means that you must use your best efforts to find employment comparable to your former employment. Hence, opposing counsel will ask you detailed questions about your efforts to look for comparable employment:
- What did you do to look for employment?
- Did you consult a headhunter?
- Did you look in the classified ads in the local newspaper?
- Talk to friends or relatives?
- Look on the Internet?
- Did you create a résumé?
- Did you submit it anywhere?
- Did you have any interviews?
- Did you receive any job offers?
- Did you turn down any job offers?
The value of your lost benefits is generally determined in the same manner as you determine your lost wages. However, because the value of your benefits is not easily ascertainable, we may need to discover information about your benefits from your former employer and we may also need to retain an economic expert to calculate these damages. For purposes of your deposition preparation, you should simply make sure that you are able to testify as to all of the benefits provided to you by your former and current employers.
Typically, lost wages and benefits are the smallest portion of a plaintiff’s damages. Emotional distress damages are usually the largest part of a plaintiff’s damages. However, you will only have the opportunity to recover a significant emotional damages award if you are able to cogently testify about your emotional distress. Opposing counsel will ask you how your mental and physical health were affected by what happened to you during your employment. This means that you must be able to articulate how the harassment/discrimination/retaliation affected you. For example:
- Did you see a therapist, counselor, psychologist, or psychiatrist?
- Did you take anti-anxiety, anti-depressant, anti-panic attack or sleeping aid medications?
- Did you suffer from any symptom of emotional distress: depression, stress, anxiety, panic attacks, low self-esteem, inability to sleep, sleeping all the time, weight loss, weight gain, inability to socialize with others, lack of enjoyment from activities you used to like, upset stomach, headaches, migraines, fainting spells, skin rashes, indigestion, bowel troubles, anger, frustration, feelings of hopelessness, shortness of breath, hot flashes, poor concentration, difficulty making decisions, repeated and uncontrollable thoughts about the way you were treated at work, low energy, and fatigue?
Because you are asserting a claim for severe emotional distress, opposing counsel will likely be able to ask you very personal and intimate questions in an effort to determine not only whether you are really suffering from emotional distress, but also whether your former employer caused your emotional distress or whether there is another source that caused your distress. For example:
- Have you ever seen a therapist, counselor, psychologist, psychiatrist?
- Have you ever suffered from emotional distress before beginning your employment with your former employer?
- Could anything else be causing you to suffer from emotional distress – e.g., death in the family; problems with your marriage or significant other; problems with a child, parent, or sibling; disease?
If there is anything in your life that you do not want to testify about (drug addiction, childhood sexual abuse, physical abuse, gambling disorder, rape, disease), you must immediately inform us so that we can speak to you about this issue long before your deposition. In some cases, we will try to keep this information from coming out at your deposition. In other cases, we may explain the benefits of allowing this information to come out at your deposition. In still other cases, if you are adamant about not allowing this information to come out, we may have to drop your claim for emotional distress.
SUBJECT AREAS OF CONCERN REGARDING YOUR DEPOSITION
There is no such thing as the perfect case or the perfect plaintiff. Every case has weaknesses and your case is no different. As your case progresses, I will identify areas that I need you to think about so that I can best prepare you to respond to likely deposition questions.
DEPOSITION DANGERS AND TIPS TO AVOID THEM
I have prepared the following lists of tips, tricks and dangers to help ensure that you give your best, most complete testimony. Please read this list carefully and ask me to explain anything you do not understand.
Always tell the truth. Your credibility is all you have; if you lose it by lying at deposition or trial, you will probably lose your case.
After you are asked a question, PAUSE. You should pause for two reasons. First, to ensure that you understand every word in the question and the question as a whole. Second, to allow me time to make any necessary objections to the question.
Listen to and take cues from my objections. I will be objecting to any improper questions for two reasons. First, to preserve the objections for the judge to rule on at a later time. Second, and possibly more important, to coach you in an effort to make sure that you are not tricked into giving a false, incomplete or inaccurate answer. I may object to a question on the grounds that it has been “asked and answered.” If you hear this objection, it most likely means that opposing counsel was unhappy with your answer and is re-asking the identical question or re-phrasing in a slightly different manner in the hope that you will contradict your previous answer. You should stick to your answer no matter how many different times or in how many different ways the question is asked. We may also interpose a “document speaks for itself” objection if opposing counsel is asking you to state the contents of a document. The best evidence for what a document says is what the document says, not what you or anyone else remembers the document to say. If we make a “document speaks for itself” objection and the document is sitting in front of you, you should simply read aloud what the document says rather than trying to summarize what you believe it says. We may object on the ground of “speculation” if it appears that you do not have personal knowledge sufficient to answer the question. You are not supposed to guess or speculate in response to any question. We may interpose a “vague and ambiguous” objection if we believe that the question is in some way vague, confusing, ambiguous or unclear. For example:
Q. Did you ever speak to Ted the harasser on the telephone?
Q. How many times did you speak with Ted the harasser on the telephone?
Q. Please describe your telephone conference with Ted the harasser.
A. He called me and asked me out on a date.
Q. What did you say?
A. No thanks.
Q. Did Ted the harasser ever use any obscenity in speaking with you?
COUNSEL FOR PLAINTIFF: Objection. Vague and ambiguous as to time.
The context of the foregoing questions and answers would seem to suggest that opposing counsel was asking the plaintiff whether Ted the harasser used obscenity during the telephone call. But, because opposing counsel used the word “ever” (i.e., Did Ted the harasser ever use any obscenity in speaking with you?), the question really covered the period from the beginning of time to the present. The “vague and ambiguous” objection was designed to warn the plaintiff in this example that opposing counsel was not restricting his question to the particular telephone conference with Ted the harasser.
Think about whether you can answer with a “Yes,” “No,” “I don’t know,” or “I can’t remember at this time.” With certain exceptions that will be mentioned later in this letter, you should try to answer questions with a “Yes,” “No,” “I don’t know,” or “I can’t remember at this time,” rather than with a longer answer. The reason for this is two-fold. First, the longer your answers, the longer your deposition. Many people who are being deposed believe they will shorten their deposition and be able to leave sooner if they “cut through the crap” and get to the point. You should not do that because even if you quickly get to all of the important areas, opposing counsel (who gets paid by the hour) will simply have much more time to explore potentially irrelevant subject areas. The other reason you should not give answers that are longer than necessary is that your answers will create new subject areas for opposing counsel to concentrate on. If you can’t answer a question with a “Yes,” “No,” “I don’t know,” or “I can’t remember at this time,” try to compose the shortest possible answer in your head before answering the question. Remember, unless your deposition is being videotaped, the record will not reveal how long it took you to answer a question (e.g., the record will look exactly the same regardless of whether you immediately answered a question or took five minutes to think about it before answering).
“Not that I remember” is not the same as “no.” If you are asked a question and the answer is “no,” say “No.” Do not say, “Not that I remember.”
Do not confuse “I don’t know” with “I don’t remember.”
Do not guess or speculate.
Do not volunteer information.
Do not help opposing counsel finish his or her thoughts or sentences. In real life, if someone is speaking to you and they forget the name of someone or something that they are talking about, you naturally help them out by saying the name of the person or thing they are struggling to remember. Your deposition is not like real life. Let opposing counsel struggle. This will waste the limited time that he or she has to depose you. This may also mean that opposing counsel won’t be able to ask the question if he or she never remembers the name he or she is trying to remember.
Before answering, make sure that all of the facts in the question are true. Opposing counsel will often try to trick you into making an admission by asking you a simple question—a simple question that contains a false fact buried in it. For example:
Q. Did the company take any disciplinary action against the harasser after you complained about him?
Q. How do you know?
A. He bragged about how he got away with it.
Q. But his employment with the company ended several months after you complained, correct?
A. Yes, but that had nothing to do with my complaint. He said that he got a better job with one of the company’s largest customers and that the company had given him a glowing recommendation.
Q. You received a promotion after the company terminated the harasser’s employment, correct?
Here, opposing counsel is asking about the plaintiff’s promotion, but is trying to get the plaintiff to admit that the company fired (“terminated”) the harasser.
Before answering, make sure you understand the time period being discussed.
If reviewing a document would help refresh your recollection, ask if you can look at it.
Avoid closure questions. A “closure question” is a question designed to “close out” an area of testimony so that you can never go back and add information you may have forgotten. The following questions are “closure questions”: Have you now described every time you were harassed? Did the company promise you anything else? Have you now fully testified as to your emotional distress? In order to avoid a “closure question,” you should say something similar to, “That’s all that I can think of right now.” Consider these examples:
Q. Have you now described every time you were harassed?
A. No, I was sexually harassed on so many occasions that I am sure I am forgetting some of the times he harassed me.
Q. Please describe all of the other times that you were sexually harassed.
A. I know that there were other occasions, but that is everything that I can remember at this time.
* * *
Q. Did the company promise you anything else?
A. That’s all that I can think of at this time.
* * *
Q. Have you now fully testified as to your emotional distress?
A. That’s all that I can remember right now.
These answers will allow you the opportunity to add incidents if you later recall things that you forget to testify about at your deposition. However, do not use this tactic as a crutch to avoid memorizing answers to key questions (e.g., the sexual harassment or your emotional distress). Undoubtedly, opposing counsel will quiz you at trial regarding why you failed to mention something during your deposition, and opposing counsel will strongly suggest that you are now making the additional incidents up.
Do not let the defense attorney bully you! Don’t change your answer or give the defense attorney what he or she wants simply because you are being bullied.
Never adopt opposing counsel’s buzz words. You were “fired”; your employment was not “separated” or “terminated.” You were “harassed,” not subjected to conduct you “didn’t like.” You complained about “illegal” or “unlawful” conduct; not simply about conduct you thought was “unfair” or you “didn’t like.”
Do not volunteer or agree to do anything for opposing counsel. Many opposing counsel will ask you to agree to do something (e.g., find information after your deposition and fill in a blank space). Do not agree to do so; say “If it is okay with my attorney.”
With few exceptions, if you realize an answer to an earlier question is inaccurate or should be clarified, speak to me at a break before changing your answer.
Do not reveal any attorney-client communications.
Remember not to say anything, not even a whisper, unless we are in a private room. Never joke during a deposition.
Never refer to any group of people in a way that would demean them because of their age, race, gender, religion, national origin, sexual preference, or disability. Those people may be on your jury and, if so, you can count on the fact that opposing counsel will make sure the jury hears your demeaning remark.
A deposition is not an endurance contest. If you are tired, have a headache, need to use the restroom, get something to drink, or stretch, say, “I need to take a break.”
Typically, at the outset of your deposition, opposing counsel will ask: ”How are you?” “How do you feel?” or “Can you think of any reason why you can’t give your best testimony?” Do not say you are “fine” unless you really are fine. Most people having their depositions taken are tired from not having slept well the night before. Most are nervous. Many have a headache or otherwise don’t feel well.
Always tell the truth.
Opposing counsel will have a few defense tricks up his or her sleeve, so stay on your guard. As defense counsel are constantly coming up with new tricks, we can’t hope to list all of them here. However, we are listing the most common defense tricks.
First, if opposing counsel doesn’t like your answer to a particular question, he or she may ask, “Are you 100% certain?” Don’t let that question trick you into changing your answer!
Second, if opposing counsel doesn’t like your answer, he or she may simply remain silent and stare at you in hopes that you will keep talking and provide some helpful information! Wait out the silence.
Third, opposing counsel may try to set you up by asking you lots of questions to which you don’t know (and couldn’t know) the answer. Opposing counsel will then pretend to be angry at your lack of knowledge hoping that either you will: (1) become flustered thinking that you should know the answers; or (2) start answering questions to which you don’t know the answers simply so you don’t appear dumb.
Fourth, if opposing counsel doesn’t like your answer, he or she may try to inaccurately rephrase it in order to put words in your mouth. Don’t agree with his or her version!
THINGS YOU SHOULD DO TO PREPARE FOR YOUR DEPOSITION
There are several things that you must do to prepare for your deposition:
First, you must disclose all potentially damaging, derogatory, embarrassing, or negative information about yourself to me long before your deposition. I will not be able to adequately protect you at your deposition if you have not revealed everything to me.
Second, read your complaint over and over again. Read this deposition preparation letter over and over again. Know and rehearse the facts and theme of your case until you know them cold.
Third, prepare a written chronology of the critical events in your case. You must be able to testify from memory (without any notes or prompting) about all the events in that chronology.
Please call me if you have any questions about this letter or any concerns about your deposition.
Very Truly Yours,
[Your Attorney’s Name]