Witness Deposition 101: What are the rules?

February 10, 2023 10:44 AM

I’m one of many witnesses for a civil suit and will be called to be deposed soon. I do not have a lawyer because I don’t need one – this is “What did you (and 10 other people) see that will bolster our argument that the flag was still there?” Since I don’t have a lawyer to ask and because I am not asking for legal advice, I’m asking you, people who are NOT my lawyers.

Can I tell the other witnesses I’m one, too? I mean, I know I can, but can I? I don’t want to do anything to undermine the case. I'm certainly not going to attempt to sway anyone or anything, but what should I be careful about?

posted by Ink-stained wretch to Law & Government (15 answers total)

You should be speaking to the attorney of the side of the case that you are a witness for and have a short conversation about the questions he expects to be asked and how you are answering them. The laywer should be putting in a little bit of interest to make sure his witnesses don't up and totally ruin the point of what they are trying to do.

Anyway, I've only had to do this twice, and both times I spoke to someone about the process for between 10 and 20 minutes before it happened. One time was a few days before the other happened right before the testimony.
posted by AlexiaSky at 10:56 AM on February 10, 2023 [9 favorites]

Best answer: The safest course is not to talk to anyone else who might be called as a witness about the case/testimony, because you will be asked about those conversations in the deposition and someone may accuse you or the other person of coordinating your testimony. It's safest to steer clear. Otherwise, the best rule of depositions is - shortest truthful answer is the right answer, including yes, no, I don't know, I don't remember, I don't understand the question.
posted by Mid at 10:58 AM on February 10, 2023 [5 favorites]

Best answer: I wouldn’t talk to anyone else in detail because, as Mid says, that’s something that you might end up having to answer more questions about.

Other than that just sit back and enjoy the ride.
posted by Tell Me No Lies at 11:13 AM on February 10, 2023 [1 favorite]

I have been deposed in a corporate case, and was trained to always answer ONLY the question you are asked. Do not add any extra information, don't ramble about connected points, don't try to explain. Beware any question that appears to be open-ended. NEVER correct a questioner, or answer what you think they *should* have asked. Answer only what you are directly asked.

So, for example, if you're asked "Did you see the thing?" (and you did see it)
...do not reply "Yeah, I think it was at around nine o'clock, over by the McDonalds that burned down. I think Billy owned it? Or was it that other guy, the one with the red truck?"
...instead, answer "Yes" and wait for the next question.
posted by aramaic at 11:21 AM on February 10, 2023 [5 favorites]

Beyond getting briefed by the attorney for the side you're witness for, the only thing, and it's surprising how hard this is to stick to, is: don't say anything more than what you are asked. That includes telling other people what you're doing there, etc. That's not what you're there to do. Don't do it.

It also includes NOT imitating what the lawyers do. The lawyers may make statements before they start, they may introduce themselves, talk about what they want to achieve, converse, argue, whatever. Lawyers like to talk; and they have relationships and strategies going on that you're not privy to. But you just answer the questions you're asked, and that's it.

(It's ok to smile and say hello politely, of course. That's it, though.)

It's simple, but a lot of people have trouble with it!
posted by fingersandtoes at 11:39 AM on February 10, 2023 [2 favorites]

The attorney questioning you will probably be representing the side that your testimony is less favorable for. The attorney whose testimony your side favors will thus probably be in touch to explain the procedure a little. However, keep in mind that neither of these attorneys is your attorney and nothing you tell them at any time is in confidence; in fact, you should expect to be asked about any conversations you had with opposing attorneys, which is why your conversation with them will probably be relatively brief and focused on logistics (along with a few ritual "always tell the truth"s, which you should of course do).

You're allowed to speak to other witnesses, but you will almost certainly be asked about those conversations, too, so it's to your benefit to minimize them. You would probably find it annoying to be asked, e.g., "So how can you be sure that your memory isn't influenced by what [soandso] told you?"
posted by praemunire at 12:04 PM on February 10, 2023 [1 favorite]

Whoever asked you to testify will call and talk to you. They want to know what you know, basically.

The rule is, "Never ask a question that you don't know the answer to" because you don't want a witness to surprise everyone with something damaging to your client. :7)

If you wander during the actual hearing, the other attorney might object, or they might seize on it and lead you into territory that you didn't explore with your attorney -- which is why everyone says to give succinct answers. And remember that they might be hoping you will get a loose tongue, or infer something into the question, so keep it very literal.

I was a witness in a custody fight last year, and the questioning by the attorney basically followed our conversation ahead of time. The other attorney asked me some follow-up questions (cross-examination), and before I answered any of them I took one long breath to give myself time to remember, "Keep it short!"
posted by wenestvedt at 12:11 PM on February 10, 2023

1. Tell the truth.

2. If you don't know, say you don't know.

3. Answer the question asked. Focus on what they asked you, and answer that. Don't volunteer a bunch of information about stuff you haven't been asked about yet.

4. If you're not supposed to talk about the case, someone should tell you. That said, it couldn't hurt to refrain from talking about the case.
posted by J. Wilson at 12:33 PM on February 10, 2023 [1 favorite]

The rule is, "Never ask a question that you don't know the answer to" because you don't want a witness to surprise everyone with something damaging to your client. :7)

This is absolutely not the rule at a deposition. (Well, I guess there are circumstances to justify anything, but it's definitely not the general rule.) The deposition is the time to find out everything you can know from a potential hostile witness (and establish the limits of their knowledge as much as you possibly can), so as not to be surprised with it at trial, when the stakes are highest.

OP, note that you do not have to talk to the subpoenaing attorney ahead of time if you don't want to. The subpoena in fact exists to force you to answer their questions, but at the deposition, not some other time. If you are feeling kindly towards the other side, in fact, I would suggest not giving the subpoenaing attorney a free early shot without the guardrails imposed by the presence of "your" side's lawyer.
posted by praemunire at 1:22 PM on February 10, 2023 [4 favorites]

I don’t know how snotty the lawyers will be, if at all, but you should remember that you are the world’s greatest authority about what you saw and heard. They don’t know. They weren’t there.
posted by kerf at 1:54 PM on February 10, 2023 [2 favorites]

Personally I would be calling the lawyer who subpoenaed me and asking a ton of questions to know exactly what the case was about and read any briefs that were filed. Then I would write down everything I remembered about the matter and attempt to answer exactly as was written in my notes. I would take the notes with me to the stand if possible (with the understanding that the lawyers would probably get to examine my notes). And then I would get a transcript of what I said for future reference.

But that’s just me, paranoid of accidentally perjuring myself!
posted by haptic_avenger at 6:29 PM on February 10, 2023

Then I would write down everything I remembered about the matter and attempt to answer exactly as was written in my notes.

You can't take notes into a deposition.

I would take the notes with me to the stand if possible (with the understanding that the lawyers would probably get to examine my notes).

And you can't take notes onto the stand. (There are certain ways to get your notes to you, but they largely require your previously testifying that you can't remember about the topic.)

paranoid of accidentally perjuring myself!

You can't accidentally perjure yourself. Perjury requires intent.
posted by praemunire at 10:58 PM on February 10, 2023 [4 favorites]

As is often the case, the Duck is your friend.
posted by yclipse at 6:23 AM on February 11, 2023

There isn’t a rule against bringing notes to a deposition, but (1) the lawyers may insist that they want your recollections without notes; and (2) the lawyers will almost certainly ask for copies of the notes and they may then ask you tons of questions about the notes. The upshot is you will probably make the deposition longer by trying to use notes, because you will still have to answer questions without the notes and then you will have to answer questions about the notes - roughly doubling the questions. When I depose a witness who has notes, I do the whole deposition I had planned without the notes, then I do the notes as a separate segment at the end. For the most part, the notes usually just create inconsistencies and ambiguity in the witnesses’ story. For those reasons I would usually recommend against trying to use notes at a deposition. Rarely, when someone needs to remember some complicated piece of information like a list of things or data, notes can be useful, but usually the witness’s lawyer should vet those notes before the deposition. As a third party witness without a lawyer, I would say that notes are usually not a good idea.
posted by Mid at 7:22 AM on February 11, 2023 [1 favorite]

I was deposed in a medical malpractice suit. I'm a nurse who was one of many nurses I assume were deposed regarding the death of an ICU patient. I don't know how many nurses were deposed (except for one who said she was moving to the Outer Banks off North Carolina. That's all I knew about her location.) because I never asked anyone I worked with. I just showed up to the specified attorney's office and answered the questions asked. When one of the questions was whether I had talked to my co-workers about the case after being subpoenaed I was able to honestly answer "No". I was asked if I knew where the above nurse had moved, and I said "she talked about moving to the Outer Banks".

I thought the case had no merit - the elderly patient had had surgery for advanced head-and-neck cancer which is a terrible, disfiguring diagnosis and surgery, and he was in the ICU for weeks as he visibly deteriorated and finally died. I suspect his bereaved family eventually agreed because I never heard another word about the case.
posted by citygirl at 3:24 PM on February 11, 2023