Appendix 5-5 Deposition Preparation—tips for Witnesses

• Library: Civil Discovery in Virginia (Virginia CLE) (2021 Ed.)

APPENDIX 5-5 DEPOSITION PREPARATION—TIPS FOR WITNESSES

Being prepared for your deposition and conducting yourself well at a deposition is essential to advancing the successful resolution of your case. Below are some basic Rules of the Road for witnesses. Reading these may help you feel more in control and less nervous.

1. Depositions are serious business. A deposition is a series of questions that the opposing attorney asks of you as either a witness or a party to a lawsuit. Your responses are made under oath and subject to the penalty of perjury. Your responses are recorded by a court reporter who is present at the questioning and takes down the questions and answers word for word. Typically, only the opposing attorney, your attorney, and the court reporter are present, but other parties have the right to attend your deposition.

A good opposing attorney will try to make your deposition seem very informal and friendly. Depositions are neither. Your opponent uses depositions to gauge your credibility and effectiveness as a witness, to gather facts, to find inconsistencies and firmly establish the parameters of your testimony ("lock" you in). Depositions are not a conversation and you will rarely, if ever, satisfy or convince the opposing attorney. The job of the other attorney is to prepare and present the best case possible for his or her client, not to objectively find the truth or to be "fair" to you.

2. Review and be well-rested. Preparation will help calm your nerves and keep you focused. Review any critical documents and your answers to interrogatories (if any). However, this is not the time to memorize answers or documents. The most effective witnesses are those who give answers that are unrehearsed and honest.

3. Tell the truth. It is the right thing to do and the smart thing to do. Your deposition testimony needs to be consistent with previous testimony and with your sworn, signed statements such as answers to interrogatories. Guessing, shading, lying, or exaggerating, even on "minor" issues, will not help your case but instead gives your opponent an opportunity to attack your credibility and harm your case.

4. Don't be too nervous, but be alert. Depositions are stressful for witnesses. Nervousness is to be expected. Remember that you are simply answering questions concerning your knowledge and information about the matter in dispute. In most cases, the success or failure of your case (or defense) does not rest solely on your testimony. If you...