1. Deposition Testimony Preparation and Pitfalls Presented by Sandy Williams, Jennifer Seidler, Jonathan Barger and Tonda Lee SmithAmundsen, LLC © 2007

3. What is a Deposition? Semi-formal litigation proceeding: Semi-formal litigation proceeding: Attorneys Attorneys Witnesses Witnesses Court Reporters Court Reporters (usually) No judges involved (usually) No judges involved Question and answer format Question and answer format Under Oath, like court testimony Under Oath, like court testimony During Discovery Phase of Litigation During Discovery Phase of Litigation

4. What is a Deposition For? Determine facts of case. Determine facts of case. Gain support for theory of case. Gain support for theory of case. Determine your knowledge of the facts. Determine your knowledge of the facts. Determine what kind of witness you are. Determine what kind of witness you are. Reduce testimony to writing (memorialize). Reduce testimony to writing (memorialize). Ultimately: trial preparation. Ultimately: trial preparation. Cases are not usually made or broken in deposition. Cases are not usually made or broken in deposition.

5. What Happens in a Deposition? Witness and from two to x number of attorneys can be present. Witness and from two to x number of attorneys can be present. Oath Administered… tell the truth, the whole truth and nothing but the truth. Oath Administered… tell the truth, the whole truth and nothing but the truth. Court reporter takes down everything said. Court reporter takes down everything said. Questions by attorney. Questions by attorney. Answers by witness. Answers by witness. Objections. Objections. Discussions. Discussions. Instructions Not to Answer. Instructions Not to Answer. Sometimes: phone calls to the judge. Sometimes: phone calls to the judge.

6. Preparation is Key! Review prior written discovery. Review prior written discovery. Review pleadings (complaint, answer, or others your attorney directs you to). Review pleadings (complaint, answer, or others your attorney directs you to). Documents – be prepared to state which. Documents – be prepared to state which. Careful of attorney-client privilege. Careful of attorney-client privilege. Meeting with your companys attorney. Meeting with your companys attorney. Tell attorney everything – even if detrimental or bad – they need to know. Tell attorney everything – even if detrimental or bad – they need to know. Be honest with your companys attorney. Be honest with your companys attorney. Understand theory of defense/case. Understand theory of defense/case. Know the facts of the case but do not over-study. Know the facts of the case but do not over-study. Your attorney will help you give best testimony possible and will give you dos and donts. Your attorney will help you give best testimony possible and will give you dos and donts.

7. Deposition Dos Listen carefully! Listen carefully! Answer TRUTHFULLY! Answer TRUTHFULLY! Think before answering! Think before answering! Ask for clarification if you dont understand. Ask for clarification if you dont understand. Answer only from personal knowledge. Answer only from personal knowledge. Answer only per your memory – if you dont remember, say so. Answer only per your memory – if you dont remember, say so. Pause if need be before answering. Pause if need be before answering. Answer concisely – yes or no is usually sufficient. Answer concisely – yes or no is usually sufficient.

9. More Deposition Dos Remain mentally sharp – keep your guard up. Remain mentally sharp – keep your guard up. Stop talking if your attorney talks or objects. Stop talking if your attorney talks or objects. Follow your attorneys instructions Follow your attorneys instructions Make a good impression! Make a good impression! Remain calm and relaxed Remain calm and relaxed Be polite Be polite Dress neatly Dress neatly

10. Deposition Donts Do not trust the opposing attorney. Do not trust the opposing attorney. Opposing counsel is not your friend. Opposing counsel is not your friend. Conversely, do not be snappy or short or sarcastic. Conversely, do not be snappy or short or sarcastic. Do not be intimidated by the attitude of opposing counsel. Do not be intimidated by the attitude of opposing counsel. Do not answer a question you do not understand. Do not answer a question you do not understand. Do not guess if you do not know. Do not guess if you do not know. Do not answer in general if the question is specific. Do not answer in general if the question is specific. Do not let the opposing attorney corner or con you into an answer if you do not know. Do not let the opposing attorney corner or con you into an answer if you do not know. Do not feel compelled to fill in facts if they are not in your memory. Only testify to what you remember. Do not feel compelled to fill in facts if they are not in your memory. Only testify to what you remember. Do not answer a question your attorney has objected to unless the objection is resolved. Do not answer a question your attorney has objected to unless the objection is resolved. Do not answer when your attorney instructs you not to. Do not answer when your attorney instructs you not to.

12. More Deposition Donts Do not agree with a statement unless it is absolutely true. Do not agree with a statement unless it is absolutely true. Is it fair… is a common trick attorneys use. Is it fair… is a common trick attorneys use. Do not answer a compound question. Ask counsel to split the statements. Do not answer a compound question. Ask counsel to split the statements. Never allow opposing counsel to testify for you or put words into your mouth or misstate what you said. Never allow opposing counsel to testify for you or put words into your mouth or misstate what you said. Do not talk about discussions with your attorney. Do not talk about discussions with your attorney. Do not volunteer information. Do not volunteer information. Do not feel compelled to tell your story. Do not feel compelled to tell your story. Do not volunteer opinions unless asked to do so. Do not volunteer opinions unless asked to do so. Do not give long, rambling answers. Do not give long, rambling answers. DO NOT EVER LIE! DO NOT EVER LIE!