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Privileged Attorney Client Information Instructions for Plaintiffs Deposition

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Instructions for Plaintiff's Deposition

In the normal case, your deposition is the first and only time in
which you will testify, under oath, about the facts of your case.
It is a very important procedure that often forms the basis for
It cannot be taken lightly.
Thorough preparation on
your part is essential. We are giving you this information to
help you be prepared for this important occasion.
The opposing attorney has a right to take your deposition.
lawyer's purpose is generally to understand what you know about
the subject matter of the case, so that he or she can prepare for
trial and assess the strength or weakness of your position.
opposition may be using this technique to try to discover as much
as possible about the facts.
The opposition, however, may also
be using the deposition as an occasion to have you testify under
oath in a way that would make you uncomfortable at trial.
If you
make statements under oath at trial which are contrary to what
you have said under oath at your deposition, your deposition may
be used to "impeach your credibility." It is important,
therefore, that you discuss with us any concerns you may have
about possible problems or areas where you feel at all weak or
unsure about your testimony.
It is also important that you have
fully disclosed to us any potential weaknesses or possible
defenses which you believe the opposing party might know about in
your case.
If we have talked about the difficulties, we will
have figured out how, consistent with the truth, you can deal
with them.
On the other hand, if we do not know about a possible
problem or a harmful document, then we will have no way of
reviewing it with you before your deposition and it is possible
that, on that point or on that document, your deposition would go
You must assume that the opposing lawyers know all of the
potential weaknesses in your case.
If for any reason you have
not told them to us so far, you must do so before your deposition
so that we can adequately prepare your testimony if the subject
comes up.
If you are right that the other side has no knowledge
about a potential weakness, then the subject will not come up and
we don't have to worry about it. But if you are wrong in that
assumption, then there can be significant problems.
disclosure to us is always the best policy.
A deposition begins with a court reporter taking your oath that
you will tell the truth.
It is generally held in a conference

room in the opposing attorney's office. One of the attorneys
from our office will always be present at the deposition.
Because the opposing attorney has requested your deposition, he
or she will ask questions and your answers will be taken down by
the court reporter.
Unlike a court proceeding, in a deposition, objections to
questions are generally few.
There is no judge present at a
deposition and there is no way to get a ruling on whether a
question is objectionable. Thus, the lawyers enter into an
agreement at the beginning of the deposition that any objections,
except objections to the form of the question asked, are reserved
for trial. This means that often there will be long stretches of
time where we will be saying nothing. Generally, however, the
less we say, the better your deposition is going, so don't be
concerned if we have little participation.
At the end of the deposition, we will ask for your signature,
which means you will have an opportunity to read the written
transcript of your deposition and sign it, thus confirming its
accuracy. Within approximately 2 - 4 weeks after your deposition
is taken, you should expect to receive a copy of the transcript
from us. When you do, you should review the text carefully.
you think there are any errors in the transcript, note all of
them on the errata sheets that we will provide. Once you return
the completed errata sheets and signature page, the transcript is
a final document and will be used in court if your case goes to
trial. Errors you may note in the transcript may be either
typographical errors or substantive errors.
It is not your job at your deposition to tell the opposing
attorney everything you know about your case.
It is your job to
answer the questions that the other side asks, as concisely as
"Volunteering information" is almost always a bad
idea. Realistically, you should abandon any idea that you might
convince the opposing party of your account by telling him or her
everything you know.
In fact, often the other side does not know
some of the things that you know, and if you make a disclosure of
an item not previously known to the other party, then you can
expect the other party to follow up on that matter by trying to
obtain witnesses or find documents opposing your view.
So, if
you are not asked about a matter, don't bring it up.
Although our role as your attorney will be limited at your
deposition, if we do object to questions you should listen
carefully to the objection we make. We may be trying to help you
out on your answer.
If, for example, we object that the question

would call for you to speculate or guess, that means we do not
want you to be guessing at an answer while you are under oath.
If you actually know what the answer is, you may go ahead and
answer, but if you do not, and you would be required to guess,
you are better off simply stating that you do not know the answer
and are unwilling to guess under oath.
In addition, we might
object that you have already answered the question in previous
deposition testimony, and we object to your having to answer it
This objection usually means that we think that your
previous answer was good and complete, and we don't want you to
deviate from it. Under those circumstances, it would usually be
best for you to insist that you have already given a full answer
and you cannot recall anything else, unless in fact there is
something important which you remember and you did not bring out
in your initial answer.
It is also possible that we will make an objection and at the
same time, instruct you not to answer the question.
If we do
that, do not answer the question.
With the above in mind, we will now turn to some specific
instructions to help you do a good job in this important


Tell the truth.


Listen to the questions. Answer that question and only that
- no more, no less. Resist the temptation to be helpful, or
get out your side of the story, or "fill in the blanks."


Do not answer a question that you have not heard completely;
ask that it be repeated.
Do not answer a question you do
not understand, and do not be afraid to say that you do not
It is up to the examiner to frame intelligible
questions; if he or she cannot do it, do not offer your
Do not explain to the examiner that the question is
incomprehensible because he or she has misunderstood words
of art in your business, trade or science. Do not help the
examiner by saying "do you mean X" or "I think you mean Y."


Think about your answer before you respond to the questions.
This permits time for you to make sure that you understand
the question and can prepare your answer properly.
It also
gives us time to object if we feel an objection is
Do not be embarrassed about taking your time in

answering. No judge or jury is present. The transcript
does not reflect how long you take to answer.
If anyone
comments that you are taking a long time to answer, just say
you want to be sure your answer is accurate and complete.
That is enough explanation for the opposing party.

Answer each question accurately, but as briefly as possible.
Respond only to the question asked and do not, under any
circumstances, volunteer information. The examiner is
entitled to an answer to the question that is asked and only
to that question.
You are not there to educate the
Do not make a speech.
Do not try to explain why
you did or said something. Do not try to appear friendly or
helpful. This is not a social occasion, and it is not a
game. The examiner's interests are often the exact opposite
of your own; do not trust him or her, charming though he or
she may be.


In connection with answering questions:

Do not make up an answer, even though you think that it
is what the answer probably is, or ought to be;


Do not guess, speculate or assume;


Do not be afraid to say that you don't remember, if in
fact you do not remember.


Do not argue with the examining attorney.
Do not let him or
her make you angry; anger can provoke people into saying
things they do not mean. Do not try to make the examiner
If your attorney appears to be angry, that is not a
signal for you to allow yourself to be angry.
It may be
just an act on his or her part.


Conversely, as already indicated, do not be taken in by the
examining attorney. Be polite but not friendly.
It is a
good technique for the opposing lawyer to appear to be
friendly to you. On the other hand, keep in mind that the
opposing attorney will make the best possible impression on
his or her client if your case is completely demolished.
Thus, do not believe that the opposing attorney is your


Often lawyers will act as if they know nothing about a
particular subject matter. Almost always, this is not the
case. Usually the lawyer has gone into the subject matter

carefully, and in fact knows quite a bit about it. Do not
be deceived by the opposing attorney saying that he or she
is really naive about your area of employment, or any other
subject matter of your case. That kind of introduction is
more likely a tip off that the other lawyer has done some
serious studying about it, and should be a signal to you
definitely not to volunteer information, and answer only
what you are being asked.

When there is a silence - and this is very important - do
not try to fill the silence. Answer the question. Then be
Do not be embarrassed by the silence. Do not try to
expand on your answer.
Sit there for 40 minutes of silence
if that is what it takes. Wait for the next question.


Do not try to memorize your testimony.


Be as specific or as vague as your memory allows, but do not
be put in a position contrary to your true recollection.
you are asked when something occurred and you remember that
it occurred on January 15, answer "on January 15." If, on
the other hand, you cannot recall the exact date, state the
approximate date only if you recall enough information to
approximate a date. Otherwise, say you don't know.


Do not explain your thought processes as to how you reached
the answer to a question.
If your answer depends on your
recollection of other facts not called for by the question,
do not refer to those other facts in explaining how you
answer the question.
For example, if you are asked when a
conversation with Jones occurred, and you recall that it had
to be in December because you met Smith after Jones and that
was in January, do not explain this thought process to the
This is an example of volunteering information,
which we generally discourage.


In testifying to conversations, make it clear whether you
are paraphrasing or quoting directly.


In answering a question calling for a complicated series of
events or extensive conversation, summarize these where
possible. An examiner who is doing his or her job properly
will ask for all the details.
It is possible, however, that
the examiner will accept your summary and this is so much
the better.


Never characterize your own testimony.
"In all candor,"
"honestly," "I'm doing the best I can," are out.


Avoid all adjectives and superlatives.
"I never" or "I
always" have a way of coming back to haunt you.


You only know what you have seen or heard. Questions are
often phrased "do you know."
A question in a deposition may
legitimately call for something you do not know, but it must
be so phrased.
There is a difference between a question
that asks "do you know," and a question that asks whether
you have any information bearing on a particular subject.


Numerous documents may be marked as exhibits at a
If you are asked about a document, read it
before testifying.
Do not make any comments whatsoever
about the document, except in answer to a question that
elicits your testimony.


If information is in a document that is an exhibit, ask to
see the document before answering.


If information is in a document that is not an exhibit at
the deposition, answer the question only if you can recall
the answer.
Do not tip off the examiner as to the existence
of documents he or she does not know about.
If you cannot
answer the question without looking at a document that is
not marked as an exhibit, you may simply answer the question
by stating you do not recall. After a witness states he or
she does not recall a fact that the examiner believes he or
she should have knowledge of, the examiner may ask if there
is a document that can refresh his or her recollection.


Sometimes an examining lawyer will ask you questions from a
document but not let you see the document.
It is dangerous
to contradict what is stated in a document, unless the
document is for some reason false.
If you need the document
to help you testify, ask for it.
If the lawyer won't give
it to you, make it clear that you feel you can't answer the
question without having the document to refer to.
If the
lawyer still won't show it to you, tell the lawyer it's not
fair for you to have to answer a question under oath without
the document in front of you but that if he or she insists,
you will do your best without it.
Following this format
insures that you will not later be impeached by
contradictory statements in the document itself.


Do not let the examiner put words in your mouth.
Do not
accept the examiner's characterization of time, distance,
personalities, events, etc.
Rephrase the question into a
sentence of your own, using your own words.


Pay particular attention to the introductory clauses
preceding the main portion of the question.
questions are often preceded by statements that are either
half-true or contain facts that you do not know to be true.
Do not let the examiner put you in the position of adopting
these half-truths or unknown facts on which he or she will
then base further questions.


If you have a flash of insight or recollection while
testifying and this has not been previously discussed with
us, hold this to yourself, if possible, until you have had
an opportunity to go over it with us.


If you are interrupted, let the
finish his or her interruption,
courteously state that you were
not finished your answer to the
with your answer.


Beware of any question that begins with "you have testified
that ... " Many witnesses simply assume that the attorney is
repeating what was previously stated, and so they
automatically agree with the characterization.
attorneys often use such an opportunity to recast your
testimony in a light favorable to their side of the case.
Accordingly, you should listen very carefully to any such
If it does not accord precisely with what you did
in fact testify to, simply state that the summary is
incorrect, and ask for the question to be rephrased.


If you are finished with an answer and the answer is
complete and truthful, remain quiet and do not expand upon
Do not add to your answer because the examiner looks at
you expectantly.
If the examiner asks you if that is all
you recollect, say yes, if that is the case.


If we object to a question, listen to the objection very
You may learn something about the question and
how it should be handled from the objection.


Do not expect to testify without the other side scoring
If the examiner asks questions that call for

examiner or other lawyer
and then firmly but
interrupted, that you had
question, and then proceed

answers that do not help your case, recognize that every
lawsuit has two sides; sit back and accept the unavoidable.
Resist the temptation to guess, expand on your answer where
no expansion is called for, or, even worse, lie.

Avoid any attempt at humor or telling jokes.
Jokes, sarcasm
or irony simply do not corne off well in a written
transcript. Often the writing will look absolutely the
opposite of what you expected.


Assume there is no such thing as "off the record." If you
have any conversation with anybody in the deposition room,
be prepared for questions on that conversation.


Every witness makes mistakes during a deposition.
Do not
become upset if you make one.
If you make a mistake, you
should correct it as soon as you realize it.
If your
correction would require new testimony on your part that you
have not discussed previously with us, ask for a break at
the earliest convenient time.
The record can be corrected
later in the deposition. Also, mistakes may be corrected
when you sign the transcript.


If you are asked whether you talked to anyone about your
testimony, you should testify truthfully including that you
talked with us about it.
You cannot be asked about the
content of our discussions because those are subject to the
attorney-client privilege.
It would not be truthful,
however, if you omitted stating that you had spoken with us
to prepare for your deposition, and it would also make us
look bad because lawyers are always supposed to prepare
their clients for depositions.


Any documents that you refer to in the deposition that you
have used to refresh your memory or prepare for the
deposition probably will be required to be produced to the
opposing party.
This means that under no circumstances -absolutely none -- should you bring a document. We may
encourage you to bring some kinds of lists, such as dates
referencing certain important events, places you have lived,
jobs you have held, etc., but generally we discourage you
from bringing any "home made" documents to the deposition.
You must clear any document that you want to bring to the
deposition with us, before you use it.


The opposing lawyer will ask you for names and addresses of
witnesses to events.
If there is any witness whose name you

are trying to protect, it is essential that we discuss this
issue before you testify.
If we know the witness exists, we
can work on ways to preserve confidentiality. We can
probably protect some witnesses but others we probably
cannot. The rule, however, is that we must talk about them
with you before your deposition.

You will probably be asked whether you have been involved in
other lawsuits or ever been arrested or similar questions.
Once again, you should prepare us for your answer.
If it is
something embarrassing for you, perhaps we can keep it out
of your testimony.
If you have not reviewed it with us and
you are asked about something, then answer truthfully even
if it is embarrassing.
It is a lot less embarrassing to
give a truthful answer then to be caught at trial with a lie
or with covering up information.


It is essential that you re-read your complaint in your case
before your deposition.
You need to understand how you
would prove all of the facts that you have alleged in your
complaint. You also should understand the legal theories,
even though you are not the lawyer and you are not really
responsible for the theories.
Finally, you should
understand the damages that we are seeking in your
complaint. Review those with us carefully and if you have
any questions about them, please ask.


You may be asked about physical injuries or mental and
emotional pain and suffering. You should not minimize the
extent of your injuries when you are asked about them.
Neither should you exaggerate as exaggeration probably works
more against you than minimization.
It is always good
simply to be as descriptive as possible about injuries. The
presentation of mental and emotional pain and suffering
needs to be discussed with us before your deposition.


Certain things may be asked in your deposition which are
personal, but which the opposing party is entitled to ask
These may include:

Marital history;


educational background;


religious affiliation;


employment history including reasons for changing


personal and family income;


previous residences;


any arrests or criminal convictions; and


driving record, in some cases.


If something happened at a particular place, it may be
useful for you to revisit that place before your deposition.
Sometimes you may be asked to diagram where or how an
incident happened, or you may be asked to diagram where some
things were in relation to others. Viewing the place in
question before the deposition often helps.


Most contracts and many parts of contracts are capable of
several different interpretations.
When asked, state your
The opposing lawyer may try to get you to
admit that other interpretations are possible.
question simply requires you to guess, which you should
refuse to do.
Try to avoid admitting that other
interpretations are possible or reasonable.
Be prepared to
support your own interpretations and do not deviate from it.


Usually a final question will be asked which is whether you
know of anything else that has not been brought out on a
particular subject matter.
Unless you know of something
specific, you should not answer this question any way other
than to say you do not recall anything at this time but that
if your are asked a specific question you will try to answer


Remember that you may ask for a break at any time you want
If you want to consult with us during the deposition,
just ask for a break and then adjourn to a place where you
can confer in private.
Normally, an examining attorney
would not consider it acceptable for you to confer with your
attorney while a question is pending.
However, do not be
intimidated if the examiner strenuously objects to you
speaking with your attorney when you are asked a question
you feel you simply cannot answer without conferring with
your counsel.
This situation may arise, for example, where
you are asked about an aspect of your business that you deem
to be trade secret or otherwise highly confidential and we

have not previously discussed this issue.
In that case,
merely state that you cannot answer the question without
first conferring with counsel and we will take it from
However, keep in mind that this is your deposition,
and not your attorney's.
You do not want the written record
to make it appear as though we frequently were prompting
your answers. Adequate preparation will generally avoid
this problem, except for the occasional unforeseen
instances, such as that described above.
We know that you will not be able to remember all of these
instructions, but we hope that most of it will seem like common
sense to you. We strongly encourage your reviewing these
instructions as often as you need, so that your deposition will
be a positive experience and allow us to pursue your case toward
an adequate settlement or winning a trial.