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New Jersey Human Resources Topics of Interest to the HR Industry in New Jersey

How To Testify In A Deposition

Posted in General

So you come to work every day and take your job very seriously.  Perhaps you work as the Director of Human Resources or in some other capacity that enables you to train employees, implement workplace policies, and have a hand in your employer’s management of the workforce.  You think you’re doing a pretty good job and actually really like what you do.

Then one day it happens … the company lawyer calls and tells you that you need to testify in a legal matter.  Your heart sinks and the thought of being “cross-examined” under bright lights by some Perry Mason wannabe makes you physically ill.  Well don’t fret.  It’s not nearly as bad as you think.  And to get you through the process, here is a brief summary of the process along with a few valuable tips that will go a long way in making it a “pain free” experience.


Image courtesy of Stuart Miles / FreeDigitalPhotos.net

First and foremost, remember that all litigation is in fact a search for the TRUTH.  Lawyers advocate the best set of facts on their clients’ behalf, but ultimately a judge and/or jury will see themselves in a truth seeking role.  When you testify in a deposition, your most important obligation to answer questions TRUTHFULLY and honestly to the best of your recollection.  That’s it.  Tell the truth … just like your parents taught you when you were five years old.  One of the most common mistakes I’ve seen over the years is that witnesses try to get a bit “clever” with their answers.  Maybe they hedge a bit or try to put the best spin on the facts.  Here’s some advice … just tell the truth to the best of your ability and don’t worry too much about try to “spin” facts that are not entirely favorable.  Attorneys get paid to present the best case for their clients based upon the “facts” that are presented.  Any competent lawyer can handle bad facts.  They exist in every case.  What is much more difficult to handle, and sometimes insurmountable, is a witness who does not testify truthfully.  So rule number one in any deposition is to use TRUTH as your guiding principle.

Another all too common mistake that really should be avoided is the “chatty Kathy” witness.  Here’s the scenario:  Opposing counsel shows up with coffee and donuts.  He’s a very friendly chap who takes great interest in your new sweater and your kids’ sporting events.  He is in all very respects very likeable and downright affable.  The deposition becomes very conversational and you begin to “offer” all sorts of information because he seems like a nice enough guy and you think it will make the process go more smoothly.


You need to remember that the lawyer on the other side of the table has only one objective in mind … to gather facts that will enable him or her to win the case!  A deposition is NOT a conversation.  You need to exercise some restraint and resist the urge to blurt things out that will not help.  You may think it will, but 99 times out of a 100 it won’t.

Sit quietly.  Wait for the question.  Listen very intently.  And answer ONLY the question that has been asked.  Don’t volunteer anything!   If you can answer with a simple “yes” or “no,” then do exactly that.  Don’t give long narratives.  Ignore long, silent, uncomfortable pauses, and don’t feel it requires you to say something.  Remember, it’s NOT a conversation, it’s an inquisition.

Lastly, do not allow yourself to be cajoled into saying something you don’t want to say.  There are literally dozens of little tricks and word games that some lawyers may utilize in an effort to “box in” a witness to some distorted testimony.  The details of these tricks are beyond the scope of this post (but perhaps will be addressed at a later date).  But the general point to remember is that YOU, the witness (not the lawyer) should control the deposition.

Say what you mean to say.  Keep it short.  Keep it simple.

Just answer the question.  And do NOT let the lawyer put words in your mouth.  If he or she does … say NO, that’s not what I said.

Be clear.  Be concise.  Tell the truth … and you will do just fine!