The Deposition, If It Gets That Far

Why this matters

Depositions are where cases are lost by people who were telling the truth. An owner who knows their trade cold, has done nothing wrong, and answers every question honestly can still walk out having handed the other side the case, because the event is not what they assumed it was.

Everything worth knowing follows from one fact about its purpose, so start there rather than with a list of tips. Nothing here is legal advice, and your own lawyer's specific instructions for your deposition override every general rule below.

What it is for, from the other side's point of view

A deposition is sworn oral questioning before a court reporter, and it is not an interview. The questioning lawyer already has your documents. By this stage they largely know what happened.

They are not there to learn what happened. They are there to fix your version of it in a transcript so that it can be contradicted later. Every answer you give becomes a fixed position, and at trial any difference between what you said then and what you say later is used to suggest you are unreliable. A single overstatement that was 90 percent true and is later shown to be wrong at the edges does more damage than a dull, careful answer ever could.

That purpose explains why the questions are slow, why the same ground is covered three times in different words, and why the questioner is pleasant. It also explains the rules below, which are not etiquette. They are the direct consequences of the purpose.

The rules that follow

Answer only the question asked, then stop. The most common self-inflicted wound is volunteering the next thing. A question about whether you visited the site on Tuesday is answered "yes," not "yes, and I remember because that was the week we were short-handed."

Do not speculate. "I do not know" and "I do not recall" are complete, truthful answers when they are true. They are also a disaster when they are false, because a document that shows you did know turns an honest witness into an evasive one. The discipline is about the boundary, not the phrase: know which facts you actually hold and decline to guess about the rest.

Do not fill silence. After you answer, the questioner will pause. The pause is a technique and the silence is not your problem to solve.

Wait for the whole question, then take a beat. The beat gives your lawyer room to object, and it slows you into answering the question as asked rather than the one you anticipated.

Understand what an objection does. Under Federal Rule of Civil Procedure 30(c)(2) an objection is stated concisely and nonargumentatively, and the examination continues, with the testimony taken subject to it. Your lawyer generally cannot instruct you not to answer, except to preserve a privilege, to enforce a limitation the court ordered, or to move to terminate the deposition. So "objection" does not mean stop talking; unless you are told not to answer, you answer.

Read the document before you testify about it. When a document is handed to you, take it, read all of it including the date and the sender, and only then answer. The question is frequently about a document that says something slightly different from what the question implies.

A friendly questioner is a technique. Rapport is professional equipment. Warmth is not a signal that the conversation has stopped being adversarial.

Know the clock. Federal Rule 30(d)(1) limits a deposition to one day of 7 hours unless the parties agree otherwise or a court orders more; state rules vary. You are entitled to breaks. Ask for one when you are tired, because fatigue is when careful witnesses start improvising, and it is more effective than any other single thing you can do for yourself in the room.

Testifying for the business rather than for yourself

The version most owners actually face is a corporate-representative deposition. Under Federal Rule 30(b)(6) the other side names the company and describes, with reasonable particularity, the topics for examination; the company then designates one or more people to testify about information known or reasonably available to the organization. Since the 2020 amendment the parties must confer in good faith about those topics before it happens.

Three things make this different from testifying about what you personally saw.

You speak for the company, not from memory. Your answers bind the business. "I was not there" is not an answer on a designated topic; the company is expected to prepare somebody.

You must prepare on topics you may not personally know. That means reading the file, talking to the techs who were there, and reviewing the records, so that you can testify about what the company knows. Being unprepared on a designated topic is treated as the company failing to appear and can produce sanctions or a second deposition at your cost.

Negotiate the topic list before you agree to the date. This is the lever, and your lawyer pulls it. Overbroad topics ("all communications regarding the project") are where unbounded preparation time comes from. Narrowing them is ordinary practice and it is the difference between a manageable preparation and an open-ended one.

Prepare with your lawyer, properly. For a matter of any size that is a session of several hours going through the documents you will be shown and the topics you will be asked about, not a fifteen-minute chat in the corridor.

The trap of being good at your trade

This is the failure mode specific to this audience, and it catches the competent rather than the careless. You know pipe, or panels, or roofs. You have spent twenty years explaining things to customers. A deposition rewards none of that.

Asked whether a fitting could have failed the way the plaintiff says, the instinct is to explain the mechanism, the conditions it would take, and what you would have expected to see. Every one of those sentences is a technical opinion you have now given under oath, in a matter where you are a fact witness rather than a retained expert, and each one can be taken apart by somebody who prepared for that question. Worse, opinions given casually bind you to a theory before your own side has chosen one.

The answer is to stay a fact witness: what you did, what you saw, what you were told, what the record shows. If the question calls for an opinion about causation, standards of care, or what somebody else should have done, say you are being asked for an opinion and let your lawyer handle whether you give one. That is not evasion. It is the correct answer to a question outside what you were called to give.

A worked passage

Four exchanges from an owner's deposition in a water-damage case, with what each one is actually doing.

Q: You were on site that Friday, correct? A: Yes. Correct answer. The instinct to add "just briefly, to check on the crew" gives the questioner a new topic, which is how long "briefly" was and how much you could have seen in it.

Q: Is it possible that the valve was left open? A: I do not know what happened after we left. The question invites speculation and almost anything is "possible." The answer states the boundary of what the witness knows without agreeing to a hypothetical. Answering "no, impossible" is worse, because it will be tested against a scenario nobody has thought of yet.

Q: You have been doing this a long time. In your experience, what usually causes this kind of failure? A: I am being asked for an opinion, and I am here about this job. The flattery is the technique; the question converts a fact witness into an unretained expert. Counsel can address whether the witness answers.

Q: Let me show you this email. You wrote that your crews needed to be more careful on these buildings, didn't you? A: (reads the whole email, checks the date) I wrote that email. It is dated two months before this job and it is about scheduling on occupied floors. The pause to read is the answer. Confirming the sentence without the document's date and subject concedes a connection the document itself does not make.

The pattern across all four: the answers are short, they are true, they state a boundary, and none of them hands over a new subject. That is what a good deposition looks like, and it is dull from the inside, which is the point.

Afterwards: the transcript, errata and signature

You are entitled to review what you said. Under Federal Rule 30(e), if you or a party request it before the deposition is completed, you have 30 days after being notified the transcript is available to review it and, if there are changes in form or substance, to sign a statement listing each change and the reason for it.

Read it. Reporters mistranscribe numbers, trade terms and names, and a wrong figure in a transcript is the figure everyone works from afterwards.

Be careful with substantive changes. Correcting a transcription error is routine. Changing an answer to something materially different is not: courts differ on whether it is permitted at all, the original answer generally remains in the record, the change itself can be used to attack your credibility, and in some circumstances it reopens the deposition. If you realise you got something wrong, tell your lawyer immediately and let them decide how to handle it, rather than fixing it quietly on the errata sheet.

References

• Federal Rules of Civil Procedure 30(b)(6) (organization testimony), 30(c)(2) (objections and instructions not to answer), 30(d)(1) (one day of 7 hours) and 30(e) (review by the witness); state courts apply their own analogues, including different time limits
• See related: Discovery What the Other Side Can Make You Produce, What Litigation Actually Costs and How to Control It
• See related: Preserving Evidence the Moment a Dispute Starts, Choosing a Lawyer for a Shop This Size