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Thu, 20 Feb 2014
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The main function of testimony is to convey relevant information to the jury in a manner in which the members will understand it, remember it and appreciate it. A witness can have impeccable qualifications, wealth of knowledge and extreme intelligence, but if he/she cannot effectively communicate that information to the members of the jury, his/her testimony is worthless, at best, and harmful at worst. The purpose of this paper is to provide you with communication tools that will allow you to be an effective deposition communicator.

Communication with Attorneys prior to your Deposition

Hopefully, you will have had an opportunity, well before your deposition, to express to the attorney representing you the opinions and conclusions that you have reached. It is critically important that the attorney fully understand not only your conclusions, but the basis upon which you reached those conclusions. It is extremely important that you be given access to all information (both disputed and undisputed) before you testify. Obviously, a change in the factual scenario could change your opinion and conclusion. It is the expert’s job to insist that the attorney provide him/her with all available information so you can inform the attorney as to whether your opinion would change depending upon what information was correct. It is much better for the attorney to know this before your deposition than to learn it, for the first time, while you are testifying. Furthermore, it is helpful to the expert to have the benefit of knowing all of the possible scenarios that surround the event in question.

Before trial, the expert should “walk through” what his/her testimony will be. It is critical, prior to trial, to discuss what information, documents, diagrams and other visual aids will be needed at trial.

Deposition Testimony vs. Trial Testimony

Many times expert testimony is given to the jury by way of deposition testimony instead of live trial testimony. In my opinion, it is always better to have the expert’s testimony live at trial. The problem with deposition testimony is that new factual information may come to light after the expert gives his/her deposition that may have a bearing on the expert’s opinion. However, since the expert is not at trial to comment on that new information, the jury is left to wonder whether his/her opinion would be the same in light of the new information. However, if left with no other choice but to give your testimony by deposition, there are some pointers you need to know.

Depositions can be videotaped if sufficient notice is given by the attorney prior to the deposition. In my view, it is insane for an attorney who wishes to offer expert testimony by deposition at trial to not videotape the deposition of his/her expert.

For non-videotaped depositions, it is extremely important that the witness vividly describe any documents or items that he/she is referring to. If you are referring to a document, always refer to the exhibit number and the title of the document, if it has one. Also, if you are referring to a particular item contained in the document, be extremely descriptive as to what exactly it is that you are referring to. This will assist the jury, when it hears your testimony read at trial, to know exactly what it is that you are referring to. Always refer to measurements in feet, inches, etc. It is amazing how many times I hear witnesses on depositions use their hands to describe distances or use reference points in the room in which the deposition is being taken. Of course, the court reporter only records verbal statements; he/she cannot interpret your hand gestures and distance markers using items in a conference room.

You should also understand that non-videotaped depositions are read verbatim at trial. Therefore, there is no room for sarcasms, funny comments, gestures, etc.

The one advantage of a non-videotaped deposition is that the witness can take more time between the end of the question and the beginning of the answer. In live testimony or a videotaped deposition, a long pause between the end of the question and the beginning of the answer could be interpreted as a lack of knowledge or confidence on the part of the witness.

There is a tendency on the part of witnesses to engage in a “conversation” with the attorneys during a deposition. The witness needs to understand that testimony is not a conversation. The attorney is dictating a question to the court reporter and the witness is dictating an answer to the court reporter. Also, be aware that most Americans do not speak in a grammatically correct fashion. After reading thousands of depositions transcripts, I am always amazed at how intelligent people cannot speak in a grammatically correct fashion. The incorrect grammar is only accentuated when it is read from a transcript at trial. Therefore, be keenly aware of the grammar that you are using in your testimony.

Videotaped depositions afford the witness an opportunity to be more instructive in his/her testimony. The witness should always be aware of the camera. When referring to a document, always make sure that the camera is focused in on the document as you are testifying about it. It is not inappropriate to ask the videographer to make sure that the portion of the document you are referring to is clearly visible. In videotaped depositions, also be aware of any habits you may have that could be distracting. Avoid putting your hand over your face, chewing gum, twirling your hair and engaging in other nervous mannerisms. Also, be aware that all sounds appear on the audio of the videotape. Therefore, bracelets banging on the table, clicking pens, etc. will all be picked up by the audio portion of the videotape. Also, be aware that, when attorneys are talking or making objections, the camera is still focused on the witness.

Attorney/Witness Conferences During Depositions

Prior to the advent of the most recent changes in the Texas Rules of Civil Procedure, witnesses and attorneys could have private conferences during the depositions. The new rules changed all of that. Depositions are supposed to be just like trial testimony. As a result, attorney/witness conferences are prohibited and breaks are supposed to be taken only at scheduled times, not when the witness wants to talk to the attorney. Also, attorneys used to coach their witnesses during depositions by making “speaking” objections. In other words, if the witness was about to say something contrary to what the attorney wanted him/her to say, the attorney could object and use the wording of the objection to tell the witness what he is saying is contrary to what the attorney wants the testimony to be. After the new rules, an attorney can only object by stating “objection as to form” or “objection, the answer is non-responsive.”

Changes in the Deposition Transcript

After the deposition is concluded, the court reporter will type his/her notes into a booklet form that is known as the transcript of the deposition. The witness will have a short period of time (usually twenty days) to review the transcript and make any changes to the deposition transcript. If the transcript needs to be used at trial or at a hearing before the twenty day period, the unchanged copy can be used.

Some witnesses think that they do not have to prepare for their deposition because they can always make changes to the transcript later. However, the changes are meant only to be in circumstances where the court reporter inaccurately recorded the witness’ answer. Also, if blanks are left in the transcript where the witness was to provide information after the deposition concluded, the blanks can be filled in. Also, changes to the substance of answers are not permitted and also destroy the witness’s credibility. Therefore, it is imperative that the witness be fully prepared for a deposition just like he/she should be prepared for trial testimony.

General Rules for Deposition Testimony that Apply to both Video and Non-Video Depositions

The following are five rules I give to each witness that testifies in one of my cases. Typically, if a witness follows these rules, the deposition will go smoothly and the testimony will be effective.

1. Concentrate on the Question

Typically, witnesses are lulled into the belief that deposition testimony is a conversation. It is not! Each and every word of the question is important. Therefore, the witness should keenly concentrate on each and every word of the question.

If the witness’s concentration starts to fail, then he/she typically breaks down and starts violating all the rest of the deposition rules. One symptom of a lack of concentration is when the witness starts to answer a question before it is finished. If you catch yourself doing that, it is time to refocus. If you have done a good job at concentrating on the questions, you will be mentally fatigued at the end of the deposition.

2. Make Sure That You Understand the Question

Do not guess as to what the attorney is asking you. Many times, attorneys use technical terms incorrectly, but the witness thinks that he/she understands what the attorney is asking about because of the context of the question. Do not assume that you know what the attorney is asking about. Make sure you that you are clear as to what the question is.

Also, questions are sometimes so long that it is difficult to remember the entire question. In that circumstance, have the attorney repeat the question. Also, attorneys sometimes ask multiple questions at once. It is much easier for the witness to give one answer to one question. Therefore, it is recommended that you ask the attorney to break down the question into each of its subparts so you can answer them individually.

3. Make Sure That You Know the Answer to the Question

Some experts believe that they should know everything. The worst thing that a witness can do is to guess at an answer. If you guess right, you have not made any points because you were expected to tell the truth. If you guess wrong, your credibility is shot. It is much better for you to say “I don’t know.” If you are able to refer to other material or information to find the answer, always offer to do so. It is perfectly acceptable to say, “I don’t know the answer to that question off the top of my head, but I can find the answer for you if you would like for me to do so.”

4. Formulate the Answer in Your Mind Before You Begin To Speak

The court reporter and the videographer are recording every word that is spoken. Some witnesses begin an answer, stop it and state “strike that” and then start over. They think that that record will begin after they have said strike that. The witness should understand that no one has the right to strike anything in a deposition. Therefore, it is much better to formulate the answer in your mind before you begin to speak. Of course, in a videotaped deposition, this process needs to be somewhat quicker than in a non-videotaped deposition.

5. Answer Only the Question

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is the rule that is most often broken in deposition testimony. If the first four rules are not followed, then typically the last rule is always broken. Sometimes, the witness did not fully understand the question. Other times, the witness is trying to convince an attorney that he is right. Other times, witnesses start to argue with the attorney and go off on items that were never a part of the question. The witness always loses when he/she volunteers information on cross-examination. First, it allows the attorney to ask more questions. Secondly, if the attorney likes what you have said, he/she will simply ignore the answer and restate the question again, causing the non-responsive answer to be a part of the record. If the attorney does not like the answer, he/she will simply object by stating that it is non-responsive. The witness never wins.


Effective communication on deposition testimony is critical to depositions. Hopefully, this paper will help you in becoming better at your communication skills on depositions.

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