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Dawson Law Group Advantage

We represent both plaintiffs and defendants in personal injury, construction, and business litigation. We believe that seeing both sides of cases helps us to give better advice to our clients.

One of the areas where we see this benefit is in giving our clients good advice about how to testify the deposition. A deposition is an examination under oath at which the witness responds to questions posed by the other side’s attorney. The core of our advice is very simple: listen carefully to the question and then give a truthful answer. There are many other elements to our advice; we usually meet with clients for somewhere between 30 minutes and three hours to advise them before they testify. But our main advice is to tell the truth.

We deal with a lot of witnesses who are either getting different advice from their attorneys or who appear to be struggling on their own to give honest answers. Often this takes the form of witnesses claiming that they don’t know something basic or that they are unable to give an honest estimate. For instance, I once had a witness was unable to estimate how steep the slope was on which he fell and broke his leg; he conceded that the slope could’ve either been completely flat (in which case it would not be a slope) or it could have been a 90° cliff. This competent adult witness, under oath, refused to give any estimate on this basic issue.

This witness and many others like him have appeared to be following an attorney’s advice to say as little of substance as possible during a deposition. The idea appears to be that the person asking you a question is your opponent and you should give her the least information possible so that you avoid saying something stupid and you deny your opponent what she is seeking — information.

The advice to give as little information as possible, rather than to answer honestly, does a disservice to the client. Most obviously, every person has a moral duty to tell the truth, especially when under oath. Another part of the equation is that if one side claims to not know something or to be unable to give an estimate, the other side has free reign to provide the information or an estimate. The witness can’t say in deposition that although he saw the other car he cannot estimate its speed, and then at trial contradict an opponent who claims that the car was going somewhere around 2 mph. Estimates of speed and time are often inaccurate but the best approach is to give an issue a little thought and to give a broad range for estimate when you’re unsure.

Another practical reason to always just answer honestly is that the defense attorney after the deposition will write a letter to an insurer or to a business client. One section of such a letter often involves commenting on how believable and appealing an opponent would be if the case goes to trial. The attorney will note when a witness has ridiculously claims to not know basic information or to be unable to estimate whether a construction project lasted three days or three months. We know about these letters, and how important they are in a defendant’s evaluation of a case — we’ve written hundreds of such letters.

The bottom line is that there are moral and practical reasons to obey your oath at deposition.