RULES REGARDING DEPOSITIONS
Depositions are extremely important. You must read and re-read this document prior to your
1. IN GENERAL
Your deposition will profoundly affect your case. It is extremely important that you read and re-
read this document repeatedly, and understand all of its provisions, before your deposition.
B. WHAT IS A DEPOSITION?
A Deposition" is a commonly used pre-trial discovery device. The witness ("deponent"),
under oath, answers questions posed by an attorney in front of a court reporter, all
questions and answers are transcribed by the reporter1 and a written transcript of the
deposition is given to all parties.
C. WHY A DEPOSITION IS TAKEN
Depositions are taken for numerous reasons. First the opposing attorney wants to find
out, before trial, everything the deponent knows about the case. Second, the deponent's
testimony is "nailed down" before trial in black and white on the transcript. Third, the
opposing attorney wants to size up the type of witness the deponent will make at trial.
CAUTION: Your deposition is not for your benefit. It is only designed to hurt your case.
Everything you say will be used against you, not for you.
REMEMBER: A deposition is not the trial of your case. It is a pre-trial question-and-
answer session called by the opposing attorney to try to hurt your case. Every word you
utter is merely helpful to the opposing attorney. Therefore, fight the natural tendency to
launch into your entire version of the case, the urge to "vindicate yourself'1; this is not
the proper time or place. You must only briefly and concisely answer the narrow
question asked. Anything beyond this just helps your opponent.
The deposition transcript will be used at trial by the opposing side to point out any trial
testimony, which varies from your deposition testimony. Therefore, depositions must be
taken very seriously.
Depositions are informal, pre-trial discovery devices, usually taken in an attorney's
office. They are informal (e.g., people drinking coffee, propping feet up on the table,
etc.). The parties, their respective attorneys and a court reporter will be present. No
judge is present. (Remember: This is not the trial of your case). You, as deponent, are
placed under oath and then asked questions by the opposing counsel. Depositions
usually last 2 to 6 hours.
E. SCOPE OF DEPOSITION QUESTIONS
Generally, the scope of depositions is unlimited. Under the Iowa Rules of Civil Procedure,
attorneys have the right to ask a broad number of questions on what may seem to you to be an
endless number of topics. Many things that are gone over at deposition will not be admissible at
trial. You should assume that any question asked should be answered unless your attorney
instructs you not to answer.
II. ATTORNEYS AND REPORTER
A. COURT REPORTER
The court reporter merely swears you in and then takes down every word that is spoken
at the deposition (by use of a shorthand stenography machine and a tape recorder). The
court reporter is neutral and does not mediate any disputes between the attorneys or
parties. After the deposition, the court reporter prepares the written transcript in
question-and-answer form and sends it to the attorneys.
B. OPPOSING ATTORNEY
The attorney taking your deposition is there to ask you questions. Remember, he is not
trying to help your case; his duty is to try to help his own client's case by weakening your
case. He may try the old "Mr. Nice Guy" routine, in order to get you to relax and trust
him. He may be short with you, grueling and relentless. Despite which technique he
decides to use, never forget that he is not your friend in these proceedings.
C. YOUR ATTORNEY'S ROLE
Your attorney will not participate in the deposition, but is required to be present to
protect you from improper questioning. He will rarely ask you a question. If you
attorney begins to speak, you must stop talking and remain silent and otherwise do as
he instructs. The attorneys may at times enter into discussions or agreements; if so, you
are not to say a word, but should listen very carefully to what is being said. Your
attorney or the other attorney may make objections (e.g., "I object to that question on
the grounds of the attorney-client privilege."). If so, remain silent until your attorney
tells you to answer. If your attorney ever instructs you not to answer, DO NOT
ANSWER! No matter how mad the other attorney gets or how harmless the question
seems, never contradict your attorney's instructions.
Ill. BEFORE YOUR DEPOSITION
There are a number of things that you must do prior to the taking of your deposition.
B. READ THIS DOCUMENT
You must read and re-read this document, over and over again. Get a full understanding
of each of its provisions. Do not hesitate to ask your attorney or his staff any questions
regarding this document.
C. READ ALL PLEADINGS
Read and understand all pleadings and motions that have been filed in your case to get a
full understanding of all causes of action, allegations, requests and/or defenses raised
therein. Go over these with your attorney.
D. GATHERING DOCUMENTS (IF REQUESTED)
The opposing attorney has the right to request you to bring documents to your
deposition. If not requested to do so, do not gather any documents to bring to the
deposition. If requested to bring documents to the deposition, then you must undertake
to gather these documents. Unless your attorney advises otherwise, a request for
documents requires you to gather together and bring not only those documents which
are in your actual possession (at your home or office), but also those documents which
are in your "constructive possession", that is, documents which are not presently in your
actual possession but to which you have access (e.g., in a safety deposit box or
storeroom, at a bank, etc.). You should review any document request in advance with
your attorney before you begin gathering documents. On the other hand, you are not
required, and should not bring documents which you are not expressly requested to
bring, even if you think the document is important; discuss this matter with your
Caution: Letters between you and your attorney or his staff, and any memos or other
documents prepared solely by your attorney or his staff, or prepared solely by you at the
request of and for your attorney or his staff, are usually protected by law from being
disclosed (e.g., pursuant to the "attorney-client privilege" and the "attorney work-
product privilege"). These documents never need to be produced. If, in reviewing the
request for documents from the opposing attorney, it appears that the request for
documents would include documents which are privileged and confidential, let your
attorney know immediately.
E. CONFERENCE WITH YOUR ATTORNEY
Prior to the deposition, feel free to ask your attorney or his staff any questions regarding
what you must or must not do. Before the deposition, you and your attorney will have a
conference to discuss this document, the documents you are to bring and your
Caution: Hide nothing from your attorney. In consultations with your attorney, it is
extremely important that you be totally candid and tell the entire truth, even if it
appears to be damaging to your case. Chances are the opposing attorney is going to find
out about it through one question or another. Do not let your attorney be the last to
know, In this respect, put yourself in the shoes of your opponent and think about any
"bad facts" that he or she may bring up against you, then let your attorney know.
F. YOUR APPEARANCE
Again, the opposing attorney is sizing you up as a witness. You should dress neatly, but
do not underdressed or overdress; your everyday business attire is appropriate. Do not
wear anything flashy or offbeat, such as expensive jewelry.
IV. DURING YOUR DEPOSITION
Your role at your deposition is to bring any requested documents and to answer all
questions truthfully. More specifically stated, your only job is to Politely answer each
question truthfully, but with as short an answer as possible.
B. THREE RULES REGARDING ANSWERING QUESTIONS
You should remember three things to do before answering each and every question,
from the start to the end of the deposition:
1. Look and listen. Look straight at the attorney asking you questions, listen very carefully to his
question, then concentrate on understanding fully the exact question asked.
2. Pause and think. After the question, force yourself to pause for at least two or three seconds, think
very hard about the exact question asked, and concentrate on formulating a short, concise answer.
3. Answer briefly. After the pause, give your truthful answer politely and calmly, but narrow your
response to the exact question asked. Give as short an answer as possible. Most of the time, a "yes sir" or
'no sir" or "I don't know" will suffice. Any time you have said more than three sentences, you have
probably said too much.
Repeat these three rules for each and every question. Not only will you narrow your
answers but, most importantly, you will help control the tempo of your own deposition.
Each answer should be formal and controlled; never allow the attorney to get you into
the tempo of a "fireside chat".
C. ALWAYS BE POLITE
Very often, what you say is not as important as how you say it and your overall
demeanor while testifying. You conduct, appearance and demeanor at depositions are,
therefore, very important. The opposing attorney will be sizing you up as a witness at the
time of trial (which may greatly affect settlement negotiations). Try to make a very good
impression. Conduct yourself in a mature and reasonable fashion. You should try to
relax and remain calm and attempt not to show any nervousness. Always respond very
politely by answering "yes sir" or "no sir" and otherwise by courteous to everyone in the
room. Never refer to the opposing attorney by his first name; it should always be "Mr.
Jones" or "Ms. Smith". Speak loudly and positively and with self-assurance.
D. IF YOU HAVE A QUESTION
If you honestly do not understand the question asked, then you should politely inform
the attorney of this fact. For example: "Mr. Jones, I am sorry, but I simply do not
understand what it is you are asking." On the other hand, you should never ask the
opposing attorney or opposing party a rhetorical or derisive question (e.g., "Well, Mr.
Jones, why don't you ask your client? She's the one that told me to do it." or "Well, Ms.
Smith, how would you feel if that happened to you?").
If you have any questions with respect to the question asked or the response to be given,
do not hesitate to consult with your attorney. You may simply ask the opposing counsel,
"May I consult with my ~ You and your attorney can consult privately either at the table
or by going outside of the deposition room. This is done all of the time. While you
should keep these consultations to the absolute minimum, do not be afraid to ask your
attorney questions if you feel it is important. Your attorney cannot tell you how to
answer, but can help you to clarify the question.
V. YOUR TESTIMONY AT DEPOSITION
Remember that your testimony at a deposition is extremely important. Go over the
following rules repeatedly until you have them virtually memorized.
B. REMEMBER THE THREE RULES REGARDING DEPOSITION TESTIMONY
Always remember the three rules regarding deposition testimony (discussed above);
1. Look and listen.
2. Pause and think.
3. Answer briefly.
C. FIRST RULE; TELL THE TRUTH
The first and foremost rule is to tell the truth, the whole truth and nothing but the truth.
You will be sworn under oath to do so. Your attorney will not allow you to do otherwise.
If you do not tell the truth, you are subjecting yourself to criminal prosecution for
perjury. If you are caught not telling the truth, it can hurt your credibility as a witness
and, therefore, hurt your case. Regardless of the subject matter or whether or not you
think it hurts your case, you must answer every question truthfully.
2. GIVE FACTS YOU PERSONALLY KNOW; DO NOT GUESS: AND DO NOT GIVE OPINIONS
As a general rule, the questions will ask for facts (as opposed to your opinion). To
properly tell the truth, you should only give facts which are within your personal
knowledge. Never volunteer your opinion unless expressly asked to do so. Never guess
or speculate about a fact. To guess or speculate is not to tell the truth about a fact within
your personal knowledge. Simply do not do it. Do not be fooled by the opposing attorney
into making statements about which you have no personal knowledge or which you do
not remember. For example, if the opposing attorney hands you a letter on your
stationery and with your signature, but you do not, in fact, remember writing the letter,
and the attorney asks you "Do you remember writing this letter?", then truthfully
3. GIVE YOUR VERSION OF THE FACTS. NOT THEIRS
Do not let the opposing attorney put words in your mouth. Stick to your version of the
facts, not his. Attorneys often ask "Well, is it fair to say that ...?" If the opposing attorney
does attempt to summarize certain facts or testimony, you must listen extremely
carefully to his summary and do not agree with his summary unless it is exactly true and
correct in all respects; if not, simply state that you do not agree with the summary that
the attorney has made.
4. DO NOT BE INTIMIDATED
Do not be intimidated by the opposing attorney. Attorneys often make insinuations or
express opinions concerning your lack of truthfulness. This is an old trick. It makes you
feel uncomfortable; you may even start to doubt your own memory. Do not fall for it. If
the attorney says "You mean to tell me that you are willing to sit here under oath and
swear to that fact?" just remain calm, look him squarely in the eyes and say "I have just
testified to that fact under oath." The opposing attorney may be relentless and may, at
times, raise his voice, but your attorney is not going to let matters get out of hand and
will not let you be badgered.
5. BEWARE OF FACTS DISTANT IN TIME AND OF OPEN-ENDED QUESTIONS
Be very careful about facts distant in time and of open-ended questions or answers. For
example, if you are asked about some event that occurred many years ago, and you do
not remember the exact time or date, simply say so. Do not guess. Do not be
embarrassed that you do not remember every fact that has occurred in your life. Nobody
expects you to. If you remember a fact but do not remember exactly when it occurred, it
is always good to say "To the best of my knowledge at
It is extremely important to limit your answer to the question asked. DO NOT VOLUNTEER
UNSOLICITED INFORMATION. This is the one mistake most often made by witnesses.
Witnesses often suffer under the misconception that a question if their cue to start telling their
story. Nothing could be further from the truth. Remember, this is not the trial of your case; this
deposition will only help your opponent. If the attorney asks you a question about a single fact,
simply answer yes sir" or "no ma'am". Never, I repeat. never, start explaining your answer
unless expressly required to do so, For example, if the attorney asks you "Have you talked to
your next door neighbor lately?" and you did in fact have a brief conversation with your
neighbor yesterday, simply answer "Yes"; do not start explaining how the conversation started
and finished and what was said. Nobody asked you for the latter information.
It cannot be overemphasized that you should not volunteer unsolicited information. The
opposing attorney will attempt to get you "rambling" into long explanations. Fight the urge.
Once again, remember that this is not the time or place for you to "vindicate yourself', that is,
this is not a "preliminary trial" of your lawsuit. Fight that urge to "tell all". A "yes sir" or ' 1no
ma'am" or "I don't know" will usually suffice. Any time you have spoken more than two or three
sentences you have spoken too much. Although you should always tell the truth and be
cooperative, you should never voluntarily give unsolicited information. A common example of a
mistake in this respect is as follows: The witness has graduated from high school and has two
years of college but no college degree; the opposing attorney asks "State the highest degree
of education that you have earned." The witness invariably says "Well, I graduated from high
school and have gone to two years of college." This is the wrong answer. The truthful answer
should have been "A high school degree." Stating further that you went to two years of college
is giving the attorney unsolicited information. It is helping his case. It is hurting your case.
Again, answer only the question asked and do not volunteer unsolicited information.
3. DO NOT GIVE YOUR OPINION UNLESS EXPRESSLY ASKED TO DO SO
You should never give your opinion or contention regarding any fact or issue unless the
attorney expressly asks you for your opinion; just stick to answering the facts about
which you are questioned. For example, if the attorney asks you "Did you go to see Dr.
Jones?," the simple answer is "yes sir" or "no ma'am." Do not state "Yes, I went to see
Dr. Jones, but after a few visits I began to think that he was not very competent, so I
stopped going." You opinion regarding Dr. Jones was not requested.
4. DO NOT VOLUNTEER WHERE INFORMATION CAN BE FOUND UNLESS EXPRESSLY
ASKED TO DO SO
Do not voluntarily offer information to the opposing attorney as to where he can find
information or other persons who know the information being inquired about, unless
expressly asked to do so. For example, if the attorney narrowly asks you "Do you have a
copy of the contract?" and you do not have a copy of the contract, but you know a person
who does, the correct answer is "no ma'am;" do not states "Well, I don't have a copy of
the contract, but I know someone who does." By so answering, you have not responded
to the question but have given the opposing attorney valuable unsolicited information.
Do not refer to or volunteer to provide any documents unless expressly requested to do
so. If the attorney does ask you if you will provide further information, defer to your
5. INSIST ON FINISHING YOUR ANSWER
Do not let the opposing attorney interrupt your full answer. You should politely insist on
finishing your entire answer. If the opposing attorney interrupts your answer, simply
state that you were not through with your answer and insist on being allowed to finish it.
6. DO NOT RAMBLE
Again, when you have finished your answer, stop. Do not go on. Attorneys will often
simply state "Okay, what happened next?" to try to get you to ramble. Do not fall for this
trick. For example, if you witnessed an accident between your spouse and another party,
and the attorney asks if you witnessed the accident, your answer is 91ye5 sir." If the
attorney then asks "Okay, what happened during the accident?," simply state "Bill was
driving and had an accident with Mr. Jones at the corner of such-and-such" Then stop.
Do not go ahead and explain every detail of the accident unless you are expressly
requested to do so.
E. THIRD RULE: THINGS TO AVOID
1 DO NOT RELAX YOUR GUARD
You should not be scared or nervous about your deposition. Nothing bad is going to happen to you. On
the other hand, you should never become relaxed and flippant about your deposition. Unfortunately, the
following pattern often occurs with witnessed during deposition. First, the witness starts out being
nervous. Gradually, he overcomes this initial tension and begins to relax. What he thought would be an
ordeal turns out to be not so bad after all. As the session wears on, he finds himself actually enjoying
being the center of attention. Everybody is hanging on to his every word. He is discussing subjects or
events about which he knows more than anyone else in the room. It is only human nature for him to
begin to feel pleased with himself and to relax. This is dangerous. It is when the witness becomes
relaxed that all of these rules are forgotten. So long as the witness remains very alert, he is on guard and
remains on guard until the deposition is over. At all times, from the beginning of the deposition to the
end, you should sit up straight with your arms on the table and your feet under the table and look straight
at the opposing attorney and listen carefully and intently to everything that is going on. Once again,
never forget the three rules regarding deposition testimony: (1) look and listen; (2) pause and think; and
(3) answer briefly. Depositions are very serious matters and can make or break your entire lawsuit; they
should be treated with utmost respect and caution
2. BEWARE OF THE OPPOSING ATTORNEY
As discussed above, you should always be cautious of the opposing attorney. He may be
very friendly and pleasant to talk with. This is just an old trick. a device to make you let
your guard down. Do not fall for it. The opposing attorney could care less about you
personally. He represents the other party and the other party only, and will do
everything in his power to "sweet talk" you into hurting your case. While you should
remain polite and courteous, remember that the opposing attorney is nothing other than
the opposing attorney.
3. STAY CALM: DO NOT GET MAD
Never become angry. Never curse or engage in name-calling. The opposing attorney may
conscientiously try to provoke you into getting mad or into arguing. Dc not let him get
the better of you. Keep your temper. Never get upset. The more upset and displeasurable
the opposing attorney gets, the more calm and courteous you should remain. If he "gets
your goat," the he has won the battle.
4. REMAIN SERIOUS AT ALL TIMES
Avoid all jokes, facetiousness, sarcasm, wisecracks or one-upmanship. What may at the
time seem like an innocent joke will not appear to be a joking matter when transcribed
into cold, black-and-white print. Never try to get the upper hand on the opposing
attorney by using some clever "comeback" or by turning the tables and asking him
questions. This can prove disastrous, Attorneys take depositions on a regular basis and
are used to them. You are not. Remain polite, courteous and calm. Above all, never
engage in any arguments with opposing counsel. Do not interrupt his questions.
It is worth repeating that you should never engage in speculation or conjecture. NEVER
GUESS. If the opposing attorney asks you "Well, why do you think so-and so did such-and-
such?," do not engage in speculation; simply state "I don't know." This is the truthful answer.
6. "OFF THE RECORD"
Often attorneys will want to go "off the record" (this means that the court reporter stops
transcribing what is being said). This usually occurs when the attorneys want to discuss
matters between themselves which do not relate to the testimony being solicited. You
should never talk during these periods. If an attorney asks you a question "off the
record" which has any bearing upon the case, simply refuse to answer and defer to your
attorney. These "off the record" discussions should be among attorneys only. Never talk
to any parties, witnesses or other attorneys about any part of the case before, during or
after the deposition, during breaks or when the parties are "off the record." Anything
you say can later be asked of you while you are "on the record."
7 CAUTION: USING DOCUMENTS TO REFRESH YOUR
If an attorney is expressly asking you about the contents or purpose of certain document
(e.g., checks, deeds, contracts, etc.), you should ask the attorney to let you see the
document that he is referring to before you answer the question.
Caution: Never refer to a document in order to refresh your memory without first
consulting with your attorney. A rule of law in Texas is that if a deponent is asked a
question, and the deponent stops and looks at a document in order to refresh his
memory, then that document is required to be disclosed and handed over to the
opposing attorney; this is true, despite the attorney-client and the work-product
privileges. For example, if an attorney asks you a question, and you then look at a letter
from your attorney to you in order to refresh your memory, then you would be required
to turn that otherwise privileged and confidential letter from your attorney over to the
opposing attorney. Therefore, the rule is simple: Never refer to any document during
your deposition unless you have been authorized to do so by your attorney in advance.
There are a number of very important matters that you must take care of following your
B. PROVIDE AGREED INFORMATION
If you attorney (not you) has agreed to provide additional information which was not
provided at the deposition, then you must immediately gather that information after the
deposition and deliver it to your attorney as soon as possible.
C. CAUTION: 20 DAYS TO CORRECT ERRORS
Following your receipt of the transcript of your deposition, you only have 20 days in which to
make any corrections of errors made by the court reporter (e.g. your answer to a question was
"yes" at the time of the deposition, but the transcript reflects your answer to have been "no"). If
the corrections are not made and your deposition is not signed within 20 days after you receive
the deposition, then it will be deemed as a matter of law that the transcript correctly reflects all
that was said at the time of the deposition (e.g., you will not be able to later correct the
deposition or testify that that is not what you said at deposition). Therefore, upon receipt of the
deposition transcript, you should sit down and review it immediately, and contact your
attorney with respect to any corrections. Never make a correction on the deposition transcript
itself. Follow your attorney's advice in this respect.
D. DUTY TO SUPPLEMENT ANSWERS
Texas law required you to supplement any answers you gave at deposition.
Therefore, if you gave an answer at the time of the deposition which you now realize was
not correct when given or is no longer correct, then you are required to supplement the
deposition transcript to provide the new information. For example, you may be asked at
your deposition to state the name and address of "all persons with knowledge of relevant
facts" bearing on the suit, or '1any experts you may call at trial." If you gave a list of those
persons at the time of deposition, but since the deposition you find new fact witnesses or
hire new expert witnesses, you need to supplement your deposition immediately.
Contact your attorney with reference to your duty to supplement.
E. BEFORE TRIAL
If the case is not settled and you case is going to trial, you should read and reread your
deposition transcript, and all corrections or supplementation made thereto, in order to
get a full grasp of what your answers were at the time of deposition. You should also
read all other party and non-party deposition transcripts. Sometimes, your attorney will
prepare a summary of your deposition; if so, you should get this summary and likewise
study it in detail prior to trial. When testifying at trial, if you say something on the stand
which is different than you said in deposition, this could severely hurt your credibility as
a witness and, therefore, be very detrimental to your case.
Now that you have read this document one time, you should re-read it over and over
again, underline it, circle things, etc., and otherwise make this a working document
which will prepare you for your deposition testimony. Again, this is a confidential and
privileged document that should not be shared with anyone.