by Suzanne Mathews

Created on: January 29, 2009   Last Updated: July 20, 2011

Testifying at a deposition is a process in which testimony of the facts is given by the plaintiff's, defendants, and witnesses. A deposition is considered part of the discovery process, which may be read into evidence during court proceedings. The person giving the testimony is known as the testifier or witness. At the beginning of the deposition the witness will be sworn under oath in the presence of a judicial officer, notary public, or attorney. The layperson may not have a full understanding of these procedures; therefore, preparing for a deposition is fundamentally important.

The task of preparing a witness for a deposition is conducted by an attorney or a supervised paralegal. The lawyer will explain to their client that their testimony will be given under oath and the importance of being truthful. In addition, the lawyer will help their client understand the process of direct, cross, re-direct, and re-cross examination. Prior to the deposition, the lawyer will review with their client all information relating to the case such as written or oral statements, answers to interrogatories, and if available exhibits. To refresh the client’s memory of the facts as they occurred, it may be necessary to review previous testimony or statements. As the lawyer and client reviews the prior statements, they will focus on inconsistencies that may need explaining before the deposition. For example, in a previous statement the witness may have said the car is red, and now it seems the car is blue. It is these types of inconsistencies, which causes doubt and should be explained before deposition.

A witness should be aware that everything being said in a deposition will be recorded; thus, it is important to listening carefully to each question. Only give answers to the question without adding irrelevant information. Normally, the first part of a deposition is the introduction process where the witness will be asked to state your full name and address, phone number, etc. In addition, the witness may be asked about their occupation and or education. Once the introductions are out of the way, the heart of the deposition begins with direct questions such as "what were you doing just before the accident occurred?"

All answers given by the witness will be heard by the opposing lawyer. The opposing lawyer will follow up on the witnesses' answers during the cross-examination. It is important for the witness to remain calm and steadfast with their answers at the same time being polite and courteous. The witness should never be afraid to say; "I don't know" or "I can't remember." Never speculate or guess if the answer is unknown. Lastly, the demeanor and attitude are equally important. The witness should not be cunning with their answers' as they may not be revered as a creditable or believable witness.

Undoubtedly, a lawyer and their paralegal have a huge responsibility in helping a witness to prepare for a deposition. From the legal teams’ expertise, the witness will be provided with the elements of the deposition.  The witness will know what to expect during the process of direct, cross, re-direct, and re-cross examination, which helps ensure a smooth method of gathering the facts.  

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