part three of three
by Bryan Dawson

The second rule for deposition testimony seems both obvious and simple. RULE NO. 2: Tell the
truth. Our experience in depositions indicates that this rule is not obvious to many witnesses. In
addition, even for people who are trying to be honest, the rule is not simple to follow some of the

At the beginning of every deposition, a court reporter has the witness raise his hand and
swear or affirm to tell the truth, the whole truth, and nothing but the truth. The use of the word
“affirm” is usually included because some people’s religious beliefs prevent them from ever swearing
to anything. The phrase “the whole truth and nothing but the truth” covers a situation where
somebody might be tempted to include a nugget of accurate facts in a mound of lies and dissembling.

So this makes telling the truth the obvious main requirement and everybody does the right
thing – right? Not from our experience. After taking hundreds of depositions, you get to be jaded
about humanity when you hear people misrepresenting the truth, usually to bend the facts in their
favor. A car that barely dented the witness’ bumper was going 50 mph, or a person has a flawless
memory of a business meeting that happened three years before.

Often, a failure to follow this rule takes the form of witnesses who seem to think they will
benefit from answering “I don’t know” as often as possible. Maybe the reasoning goes that you want
to tell an opposing lawyer as little as possible because you can’t be tripped up about misstatements if
you haven’t really provided any statements at all. For instance, a witness may be asked about how
long it has been since she missed work because of her injuries from an accident and, hoping not to be
contradicted by employer records, she will say that she does not know. A decent lawyer, however,
will ask the witness to estimate when she last missed work and some witnesses will claim that they
also cannot give an estimate. The lawyer will then make it clear on the record that the last day of
missed work because of injuries could have been yesterday or could have been two years ago, and
some witnesses will even agree with this.

Of course, “I don’t know” is a fine and honest answer when it’s true. But claiming to not know
or have any estimate about whether an event happened the day before the deposition is often
difficult to believe. Such answers usually aren’t given in isolation, but are part of the witness’ plan to
push through to the end of deposition by giving the same non-answer, even when doing so becomes

The difficulty of remembering past events and of giving estimates is what makes following this
rule of telling the truth a challenge even for people who take their oath seriously. Sometimes
deposition testimony will happen two or three years after an auto accident or a discussion that
formed a contract. Nobody will know how far apart vehicles were when one of the drivers first
applied his brakes, or what was said word for word when a homeowner talked to a contractor about
repairing a foundation. Being honest about what you remember and what you can estimate is
important in dealing with these situations. To say it again, a witness should definitely answer that he
cannot answer if an event or discussion is so remote that all memory of it is lost. In many other
circumstances, it is best to be honest about what you remember, how strong your memory is about
the topic, and what you don’t remember it all. When you can give a reasonable estimate, it is often
best to phrase your answer as “I’m not sure, but I would estimate that…”

Telling the truth is the only reason anyone needs to comply with this rule, but there are other
benefits. A jury or judge will appreciate a witness who is clearly trying to tell the truth, even when
testifying about facts that harm the witness’ case. Also, anyone can make a mistake and give a poor
estimate or even contradict clear facts. A jury or judge will usually overlook misstatements when a
witness is doing her best.

We have prepared hundreds of people to testify at depositions or trials and many of them feel
intense anxiety about saying the wrong thing. We always tell our clients to focus above all else on
being honest, and we point out that this is both the correct approach and also the simplest. Keeping
straight an elaborate lie, or keeping a straight face when claiming to not know whether you missed
work the prior day, is difficult. Doing your best to convey facts you remember, or to give reasonable
estimates for what you mostly remember, is easier. Clients feel better when we advise them to forget
about what will help or hurt their case, and everything else, and to just focus on the simple rules of
honestly answering the questions they are asked.

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.