It’s a situation anyone would dread—you just learned that you must give a deposition for your employer. Perhaps you received a subpoena, or maybe your employers’ in-house or outside counsel shared the bad news. You are nervous and overwhelmed, having never been deposed before. Here are a few simple tips on how to address this daunting situation.
Talk to a Lawyer
The first lawyer you should talk to is your employer’s attorney. This may be in-house counsel at a large employer, or it may be your employer’s outside counsel. Ask the attorney for basic information, including who the parties are to the lawsuit, what the case is about, and why you were picked to give a deposition. You should ask whether you are being deposed as a fact witness, where you will testify about your personal knowledge, or whether you are being deposed as a “corporate designee” on behalf of your employer. This distinction is important for purposes of your preparation.
You also will need to decide whether you can be adequately represented by your employer's attorney, or whether you should retain your own counsel. This will depend on a number of circumstances, including the claims in the litigation and your role with respect to those claims. You always have the right to hire an attorney to represent you during a deposition. But in many—if not most—situations, your employer’s attorneys can represent you in the deposition, and will almost always do so without any cost to you.
If you’re unsure about whether you should hire your own attorney, you should discuss that issue with your employer’s attorneys to make an informed decision based on the specific circumstances you find yourself in. However, you should have that discussion as early as possible—before you start preparing for the deposition or discussing substantive issues in detail.
Don’t Talk to Anyone But Your Lawyer
It might be tempting to discuss your upcoming deposition at the office water cooler. It might be equally tempting to complain about it on your social media page. Maybe you just want to vent to your friends about it while out to dinner. Quite simply—do not do this. During your deposition, it is almost guaranteed that you will be asked who you spoke to about your deposition—and what you discussed. Do not share your lawyer’s advice with your friends, colleagues, or social media followers. By speaking with others about the deposition, you open up the possibility that they may be the next person to be deposed. Limit your preparations (and venting) to discussions with your attorney.
Always Tell the Truth
Even though you’ve been told to tell the truth your entire life, this is the time it really counts. In a deposition, your testimony will be under oath, just as if you were testifying in court. You are subject to prosecution for perjury—a serious criminal offense—if you do not tell the truth during your deposition.
Being Honest Does Not Mean Being Helpful
A deposition should not flow like a normal conversation. The attorney questioning you is not your friend (even if they are acting friendly). Depositions require listening carefully to the question asked, pausing before you respond (so that your lawyer may object), and answering only the question asked of you.
Consider this example. The lawyer asks you “did you have breakfast this morning?” You respond: “Yeah, I had bacon and eggs.” In normal conversation, that would be a perfectly fine response. In a deposition, you’ve said too much. The lawyer did not ask you what you had for breakfast. He merely asked whether you had breakfast or not. The answer to that question is either a “yes” or a “no.” If you answer “yes,” it is the lawyer’s job to follow up and ask you what you had.
Here’s another one. Have you ever witnessed a young child, say 7 or 8 years old, answer a telephone (especially a house phone back in the days before we all had our own cell phones)? It would usually go something like this:
Uncle Joe: Hi, Cindy. It’s Uncle Joe. Is your Mom home?
Uncle Joe: Could you get her for me?
Uncle Joe: Can you please put her on right now?
Cindy: Mom, Uncle Joe wants to talk to you.
Cindy is the perfect deposition witness (from your perspective) and a nightmare (from the perspective of the attorney taking the deposition). She is listening to each question, responding honestly but concisely, and only doing exactly what she is asked. You want to be Cindy at your deposition.
Don’t Worry About Bad Memory
It is likely that you will be questioned about events that occurred years ago. You may not recall all (or any) of the details. If you are testifying as a fact witness, it is perfectly acceptable to testify that you do not recall. You may also be shown emails or documents which you authored or received many years ago. You may not remember those emails, either. A deposition is not a memory test. Your only job is to testify truthfully as to what you know today.
Find out where you need to be for your deposition and show up on time. If the deposition is proceeding on Zoom (which has become very common since the pandemic), it is best if you use a laptop or desktop that has a camera and microphone. Log in a few minutes early to ensure your video and sound are working properly. Many depositions are videotaped, so be sure that your physical appearance is camera-ready. Avoid using a smartphone for your Zoom deposition, as it may be difficult for you to review documents shown to you during the deposition.
Most witnesses feel stressed going into a deposition and bored coming out. Follow these tips, and you’ll probably agree.
- Senior Counsel
- Member of the Firm