Board Certified – Family Law
Texas Board of Legal Specialization
Goranson Bain, PLLC
6900 N. Central Expressway, Suite 400
Plano, Texas 75024
You are about to give sworn testimony, either by deposition in an attorney’s office or in the courtroom. This information is presented in an effort to make your testimony more effective. Your deposition testimony may be used at trial, therefore, similar rules apply to deposition and courtroom testimony. Finally, some of these pointers should be observed strictly even though they may not coincide with your personal style and inclination. Others are mere suggestions. Occasionally, your case will be an exception to the “general rule” making these instructions inappropriate. It is important that you consult with an attorney before giving testimony.
B. PREPARATION FOR TESTIMONY
Notice. You are entitled reasonable notice of the deposition or trial appearance. Case law has interpreted “reasonable notice” to mean three to five days, depending on the circumstances.
Appearance. Dress conservatively for your deposition or court appearance. You will be notified in advance if the deposition may be videotaped; however, approach each deposition as though it is going to be videotaped. Choose business attire over casual clothing, dark shades over bright colors, solids over prints, conservative shoes, and modest jewelry.
Demeanor. Consider yourself under observation from the time you leave your motor vehicle until you return to it. Do not laugh or make clever remarks during that time. Do not be drawn into pleasantries by the opposing party, opposing attorney, or staff. If you see someone you know, make your greeting brief.
Posture. Your posture conveys your attitude about the case. Do not sit back in the chair. Keep your feet on the floor. Never swing your leg or jiggle your foot. Sit erect and slightly forward. This case is serious business to you, so your demeanor will be serious and businesslike. Avoid mannerisms that tend to indicate anxiety.
Speech. Your speech should show your strength as a witness. Try to be conscious of distracting speech patterns, such as use of crutch phrases like, “You know,” or “Don’t you see,” or “To be honest with you.” Do not use words like “never” or “always.”
If there is a court report, the court reporter will take down every word, and only one person may speak at a time. Do not interrupt a speaker, and if someone interrupts you – stop. It is difficult for the reporter to record nods of the head. Also, words like “Yeah” sound rougher in writing than they do orally, so say “Yes” and “No.”
Do not be concerned about errors in grammar or the mispronunciation of words. The truth and accuracy of your recollection is more significant than language agility.
Tell the truth. Even if you think the truth will be to your disadvantage, always tell the truth. When telling the truth is your principle guideline, you can relax. You will not get flustered when the opposing attorney tries to make you sound like you have been lying because you have not been. You will not have to figure out whether a truthful answer will help or hurt the case. You will not have to worry about what you said three questions back or three months ago. If your answers are inconsistent, there is undoubtedly a reasonable and honest explanation. Your demeanor and voice will communicate that you are being truthful.
Know the facts of your case. It is crucial that you know the facts of your case. Create or review a timeline of events before your deposition or testimony. Review important documents and other significant tangible information (i.e., photographs and recordings) before your deposition or testimony. If available, review the transcripts from previous hearings or depositions before your deposition or testimony. If your deposition has already been taken, it is important that you review your deposition testimony before you testify in court. There is no substitute for preparation.
Be brief. If the opposing attorney is questioning you, do not make his or her job easier by speculating, explaining your answers, or anticipating questions. For example, do not suppose what he or she intended to ask and answer that question as well as the question asked. If you do not know an answer, or if you do not remember something, say so. Do not speculate on what might have happened or what normally would happen. Sometimes it may be appropriate to begin your answer by saying, “To the best of my recollection.” Do not guess or estimate. Give the attorneys present ample time to object when you are asked for an opinion. Make your answers brief, and only answer the question asked. When you have finished answering the question – stop talking. Do not try to explain or justify your answer. Do not volunteer information. Sometimes an attorney will ask a confusing or compound question. Ask that the question be repeated. If it remains unintelligible, ask that it be rephrased because you do not understand the question. Do not ask, “Do you mean….?”
Putting words in your mouth. Do not allow the opposing attorney to put words into your mouth. Quite often, the opposing attorney will attempt to paraphrase or summarize a series of questions and answers into a single question. Listen to the question very carefully. If the question ties a series of significant facts together, it should be asked in a series of questions, not in a single compound question. For instance, the attorney might say something like, “You met with Mr. Smith and the child six times, but you only met with my client and her husband three times, isn’t that true?” The question is really asking about the number of appointments for four individuals. Furthermore, we cannot determine by the question whether the appointments were individual sessions or joint session. A “Yes” answer could be interpreted a number of different ways. Do not answer paraphrased or summary questions unless the question is only subject to a single interpretation.
Leave the door open. Do not be lured into being inclusive. When the other attorney asks you, “Is that all?” say, “That’s all I remember,” or “That’s all I found.”
Paper chase. If a document is shown to you and you are asked if you can identify it, your answer will normally be “Yes.” Stop. Make the attorney ask you to describe the document. Then identify the document by key words that appear at the top of the page, such as the title, date, addressee and writer. The attorney questioning you is not asking if you have ever seen the document before by simply asking if you can identify it. If you have never seen the document before identify it by using words such as, “This appears to be ….”
Objections. As you are giving testimony, an attorney might object to a question propounded to you. When that happens, stop and do not proceed to answer until you are instructed to do so by your attorney or the judge.
Remain calm. The opposing attorney’s strategy may include getting you to become argumentative, defensive, or just plain angry. No matter how angry you become do not let it show. Check your tone of voice so that it remains calm, pleasant, earnest, and reasonable. Prepare yourself to shield against irritating insinuations and the behavior of the opposing attorney. Your opponent’s case improves if you show hostility. Being reasonable under provocation will improve your case.
C. DOCUMENT PRODUCTION
Your deposition notice may be accompanied by a document request. You are entitled to notice of a document request. It is important that you work with your attorney before the deposition to respond to the request and that you gather documents and tangible things responsive to the request.
D. WHAT TO EXPECT AFTER TESTIFYING
You will usually receive the original deposition a week to two weeks after the completion of the deposition. Unless the attorneys have agreed otherwise, you have twenty days to review the deposition and sign it before a notary. You are allowed to correct the form of the deposition. If you do not return the deposition in the time allotted, an unsigned copy may be used at final trial or a hearing.
E. ADDITIONAL INFORMATION – WHAT TO DO AND WHAT NOT TO DO
Do not argue or be defensive. Defensiveness clouds clarity. If you are engaged in a dispute about insignificant facts, it will detract from your message. No matter how well prepared or knowledgeable you are, if you argue with the opposing attorney you will appear difficult, uncooperative, or defensive. Refusing to acknowledge a point, even when the facts call for it, will hurt your credibility.
Do not over explain. The truth may be stated in few words. Do not be afraid to let a statement stand on its own merits. Sometimes because of nervousness or a desire to appear helpful or completely truthful, you may feel the need to explain every detail. Resist the urge to over explain. Some witnesses have a tendency to answer the same question several different ways in response to a single questions. Over explanation diminishes the message. Stand your ground. Answer the question that is asked and stand your ground. Resist the urge to change your answer so the attorney will move on to something else. Although agreement may defuse tension in the short term, it could destroy your case in the long run. Stand firm.
Stand your ground. Answer the question that is asked and stand your ground. Resist the urge to change your answer so the attorney will move on to something else. Although agreement may defuse tension in the short term, it could destroy your case in the long run. Stand firm.
Be prepared. There is no substitute for preparation. If the opposing attorney is able to establish that you do not have a grasp of the general underlying facts, your credibility will be called into question. You are not expected to know insignificant details. An honest mistake can typically be explained and dismissed in short order.
Engage the person speaking to you. During a deposition speak directly to the attorney asking the questions. When you are in the courtroom make eye contact with the person asking the question, whether it is the opposing attorney, your attorney, or the judge. Consistent and sustained eye contact conveys honesty and it draws the listener to the testimony.
There are two keys to a successful deposition and court testimony:
- Preparation; and
- Stay calm.
Keep these suggestions in mind when you give testimony. Think about what your testimony is likely to be. Talk about troublesome questions or circumstances with your attorney in the days leading up to your testimony. Tell your attorney about any areas that concern you or that you believe could harm your effectiveness as a witness.