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ADVICE ON SURVIVING A DEPOSITION PART 2

part two of three
by Bryan Dawson

In the previous blog posting about depositions, I explained how a deposition works and gave
some guidelines about how to dress and other logistics. Now I’ll go over one of the two key rules that
apply to how you should testify. RULE NO. 1: Just answer the questions you’re asked.

In a casual conversation, one person will ask a question or bring up some topic and others will
respond and maybe bring up other topics. The person may ask how your weekend was, and you may
say that the weekend was pretty boring, but that two weeks ago you went to a concert. This kind of
open dialogue is part of our everyday lives.

Depositions are different. A deposition is part of the formal discovery process in an
adversarial system. The lawyer asking questions is usually a perfectly nice person, but she is doing her
job representing her client as she attempts to find out about you and your case. The questions she
asks are mainly intended to get a full understanding of what you as a witness observed or what the
grounds are for your side of the case.

In this formal discovery process, your obligation is to truthfully answer whatever questions
the attorney decides to ask. Many people -including some lawyers – talk about answering with the
fewest words possible, so one word is better than 10, and 10 is better than 100. We rarely advise a
witness to shorten their answers. If an attorney asks an open-ended question, I have no problem with
a client spending five minutes giving a full answer. For instance, if an attorney asks what led to a
contract dispute or what effect your injuries are having your life, a five word answer will not suffice.

The problem arises when witnesses give long-winded answers that may start by addressing a
question, but then the answer drifts off into other topics. The example above about weekend
activities illustrate this point and, in a deposition, the right answer when questioned about “how your
weekend was” would be to just say that it was boring. The question was not about concerts you’d
seen or activities during the last few weeks. Another example of this point is that “do you know the
time?” can be answered by saying yes or no, but does not require you to look at your watch and to say
what time it is.

Just answering questions you are asked leaves the responsibility for guiding the deposition
where it belongs — on the attorney asking you questions. If it mattered for the case, the attorney
could follow-up with questions about what made the weekend boring, and what activities you a done.
The attorney could also ask about a broader timeframe if she wanted to hear about you having gone
to a concert.

Following this rule can have consequences for case. In a n auto accident case with disputed
liability, for instance, you may know about a pedestrian who witnessed the accident. If the attorney is
being thorough, he will ask you if you are aware of any witnesses and you will provide him with what
you know. If the attorney never asks, however, a witness is not required to divulge all the information
she knows, only with what the attorney asks about.

Another affect of just answering questions is that your testimony tends to be shorter. Dozens
of times, I’ve been asking questions in a deposition when the witness will bring up a topic I have not
asked about, but that usually start a whole new line of questioning.

You can follow this rule with a couple simple steps. First, listen and make sure that you
understand the question. If the attorney has used in ambiguous word, or even if you were distracted
as the question was being asked, have the question rephrased or repeated. Second, fully and
truthfully answer the question and then stop talking. Usually another question will quickly follow, but
you are not responsible for filling any voids in the conversation.

About the Author: Bryan Dawson is a partner in Dawson Law Group PC, with offices in Portland and
West Linn, Oregon. He has tried dozens of cases in personal injury, insurance defense, and
construction or contract disputes.

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