How to Prepare for Testifying in a Deposition or at Trial

By Robert Nislick

You have been subpoenaed to testify in a deposition or at trial. It is essential that you prepare for this event. The lawyer who will question you has thought carefully about what information he or she wants to get from you. Accordingly, you need to communicate ahead of time with your lawyer about what you will say and how you will answer the questions.

Above all, tell the truth. You are under oath. If the facts are bad, let your attorney figure out how to lessen the impact.

But how will you actually answer the questions that are posed to you?  The best answer to many questions will be either:

1.         Yes.

2.         No.

3.         I don’t know.

4.         I don’t remember.

5.         I don’t understand the question.

If a question requires a more descriptive answer, then answer it concisely.

Pretty straightforward. The lawyer examining you will be fishing for information. Don’t volunteer information by answering questions that have not been asked of you. It is the examining lawyer’s job to figure out what questions will yield the most useful discovery.  You do not have to help him by giving him an opportunity to ask you about topics that never occurred to him.

What will your lawyer be doing when someone else is asking you questions? In a deposition, some attorneys will try to put on a show for their clients by interrupting, posturing, and arguing about things that don’t matter. If I am defending a deposition, I will generally allow the other lawyer to question you. You are probably doing a great job. Even if I make an occasional objection during the deposition, for the most part, you will answer the question anyway. In rare instances, I may tell you not to answer a question, but this is typically only likely to happen if the questioner asks you about communications that are protected by the attorney-client privilege. If there is an objection while you are testifying at trial, wait until it is clear that you should answer. When in doubt about how to answer, just keep those five magic answers on the tip of your tongue, and you will be fine.

If you are offering direct testimony at trial, the lawyer should tell you in advance what questions he will be asking, and why he will ask you those questions. You should also go over the answers you will give. Again, you should always tell the truth when you are testifying. It is important to prepare so that you do not inadvertently surprise your attorney with an unexpected answer, a confusing non sequitur, nonresponsive information, or a damaging admission. Practicing with your attorney ahead of time will also help you get a sense of the cadence of the deposition or trial, and will help the process run more smoothly when you are called to testify.

Framingham lawyer Robert Nislick has been admitted to practice in Massachusetts since 2005, and handles many types of cases.  For more information, contact Robert Nislick.

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