The Art of Deposition Responses

After a deposition, have you ever asked yourself, “Did I say too much or was it not enough?” As an expert you have to make important decisions on how to respond to the opposing attorney’s questions. Seasoned experts know that the deposition is an opportunity to defend their opinions and for the opposing attorney to gauge an expert’s strengths and weaknesses and elicit information for a potential motion to dismiss the expert.  There is an art to deposition responses, and knowing how to reply is a critical part of your deposition success.

What are Your Options?

While there are no set rules on how to answer in deposition, there are generally six ways to answer: yes, no, short answer, longer answer, don’t know, and don’t recall. Typically, the less complex the question the less complex your answer needs to be. For rudimentary questions a simple yes or no answer or short statement will suffice, unless there is a follow-up question by the opposing attorney. With more complex questions, it is common to give a yes or no answer and then clarify with a short statement. If the question asked requires a more involved answer, then take your time and answer the question more fully, being careful not to stray off topic. As a general rule, do not volunteer information outside of the question.

Dr. Walter Kilareski, a seasoned traffic accident reconstruction expert and presenter in the Matson & Associates Effective Expert Witnessing Online Course offers this advice on responding to questions in deposition:

“It’s an experience thing knowing when to talk or when to be silent. The worst thing that you can do is [give] an answer that should have been yes or no; you talk for the next four minutes and give them a whole bunch of ammunition to start some more questioning.”

More Tips for Success

Never assume the meaning of a question. If the question is unclear, ask the attorney to repeat, rephrase or restate. Never answer questions that are outside your area of expertise and don’t be afraid to inform the questioning attorney as such.  Do not attempt to guess. It is always better to respond with “I don’t recall” or “I don’t know”. But, be very careful in answering “I don’t know” if the question is within your opinion area and expertise as it could disqualify that opinion.  Also, use “I don’t recall” when you actually cannot remember, not as an out for a tough question.

You will have the attorney representing the party that retained you sitting beside you during the deposition.  He/she may object to a question at any time and you should listen carefully to the objection as it may contain hints from your attorney.  Unless he/she instructs you to not answer the question, you may go ahead and respond.

Practice, Practice, Practice

Effective deposition responses result from lots of practice and not letting the pressure get the best of you.  Come up with questions you think an opposing attorney would ask you, and then practice answering them using the various responses discussed above.  An attorney at the firm that retained you who is involved in preparing you for the deposition will be helpful in this regard.

Keep Your Cool

The deposition is used by the opposing attorney to see how you react to questions.  Are you confident in your responses?  Do you look the opposing attorney straight in the eyes? Do you show the body language and facial expressions that would impress a jury?  Are you fluent, smooth, and persuasive in answering questions?
  
Lastly, recognize the attorney sitting next to you is not representing you personally.  You are fully responsible for your opinions and testimony and are under oath to tell the truth.