February 17, 2016

Best Practices: What Every Witness Should Know Before Giving A Deposition

by Norman E. Greenspan

As with most litigation, most of the time and expense is incurred in the pre-trial phase known as discovery. During discovery, the parties to the lawsuit have the opportunity to obtain relevant information from each other, and from persons who are not parties to the lawsuit. The most likely sources of useful information are documents, including electronically stored information, and witnesses. Witness information is usually obtained by having the witness testify outside of the courtroom, under oath, with the testimony being recorded, i.e., a deposition. See, Rule 30, Fed. R. Civ. P.

Preparation is the key to a successful deposition, for both the witness and the attorneys. When representing a testifying witness, I want the witness to know what to expect. I want to anticipate everything the witness is going to be asked about, and everything the witness is going to say. I don’t want surprises; lawyers hate surprises.

Preparation for the deposition takes place in advance of the deposition, but not so far in advance that the witness will forget the essentials. It is important for the attorney to plan for the witness preparation meeting. The attorney should learn what the case is about, the client’s role in the case, and have an idea what the client may know about the matter. The attorney should review the complaint and other pertinent pleadings. Any documents that have been produced in the case that pertain to the client should be gathered and reviewed.

At the planning meeting, a number of important things are discussed before we get into the substance of the witness’ testimony. I explain the attorney’s role in the process and the application of the attorney-client privilege to the preparation process. I describe for the witness my understanding of the case, and the fact issues in the case that may involve the witness. Only then do we begin to discuss what the witness knows about the matter, including the review of the documents that the witness may be shown at the deposition or that may refresh the witness’s recollection (if it is strategically decided to try and refresh recollection). We identify and discuss areas of concern or discomfort. I tell the witness that he should assume the attorney on the other side already knows what the witness knows, and to tell me everything because the last thing we want is a surprise and to not be prepared. I discuss the purpose of the deposition, and how it likely will be used.

We then turn to the actual testimony, and how to testify. The importance of understanding the question before answering is emphasized and repeated. The witness cannot be afraid to say that he doesn’t understand the question, and ask for the question to be restated. The witness must understand that the guiding principle in testifying is to tell the truth. As a witness, you should talk slowly and think before you speak. Answer only the question that is asked without volunteering information. Don’t speculate. With that in mind, the best answers are direct and succinct: “yes”, “no”, “I don’t know” and “I don’t remember” are the best answers, if appropriate. We discuss the difference between “I don’t know” and “I don’t remember.” I suggest that if the witness does not remember something when a question is asked, but recalls later in the deposition, the information should be provided.

The importance and usefulness of documents is explained. Documents are usually created because no one is expected to accurately remember the information that is in the documents, and are often the best evidence of what happened. Consequently, if there are documents available, then the witness should ask for them. The purpose of the deposition is to obtain accurate, truthful information, and is not supposed to be a memory contest. We then have a practice deposition that focuses on the important facts and documents.

It is explained that once the deposition starts, irrespective of whatever objections are made by the attorneys, the witness should assume the question is going to have to be answered. So, focus on the question, and not the squabbling attorneys. We discuss that once the deposition is complete, a transcript will be prepared that the witness can review and correct.

Lastly, we discuss logistics: what the deposition room will be like, who is expected to be there, where to sit, where counsel will sit, the handling of documents, the role of the court reporter or videographer, appropriate attire, and taking breaks. I schedule a meeting with the witness one hour before the deposition begins to review the essentials, answer last minute questions, and familiarize the witness with the deposition room.

If the witness understands the case and his role in it, focuses on the questions and tells the truth, with all this preparation everything else will fall into place, hopefully.

For more information regarding deposition preparation, please contact Norman at (215) 390-1025 or email him at