Being questioned under oath by the other side, whether at trial or at deposition, will be most productive if you follow some basic principles:
- Tell the truth.
- Testimony is made up of questions and answers. Even more important than articulating the answers is listening to the questions.
- Do not rush into answer. Give yourself time to think about the question and your lawyer time to object. If there is an objection, immediately stop talking.
- Make sure you understand question; if you do not understand question, or a term in the question, say so; do not make assumptions as to what the question means; force questioner to define terms.
- You are entitled to have a question asked in a fair form and in a form that you understand.
- It is easy to think you know what is being asked or assume you know. Resist the temptation to fill in the gaps of "unasked" questions.
- Never guess at an answer.
- If you don't know, say so.
- Answer only the question asked; do it directly; do not "suggest" the next question.
- Give short answers where possible. Stop when answer is over; do not continue talking merely because opposing counsel pauses; just wait for the next question.
- Yes or no answers are best of all (but do not give yes or no answers where they are not appropriate no matter how much insisted on by the questioner).
- Insist on long answers where necessary.
- Where asked to list "everything" regarding a certain topic (like all injuries, or all pain), end with something to the effect of, "That is all I am presently aware of or all I presently recollect."
- Don't be cute or flip.
- Do not anger or get mad.
- Don't argue with counsel; be courteous and forthright.
- Use simple, short, understandable words in preference to multi-syllable words.
- Speak clearly and in a voice loud enough to be heard.
- If the other side refers to a document, you may need the document to answer question; in the appropriate situation ask for it.
- Avoid words like always and never (but not always); do not exaggerate.
- Be careful if opposing lawyer paraphrases your answer. Something subtle may have been changed. If you are asked whether you agree with paraphrasing, sometimes you will say no, other times (even if the answer is not a clear no) you may want to stick with the way you originally stated the answer rather than to agree with the paraphrase.
- In depositions, if you get tired, ask for a break. This is harder to do at trial, but is still possible.
- The trickiest questions are sometimes asked in the friendliest, most conversational style or they are hidden in a series of perfectly straightforward questions. Do not worry about whether the question is a trick question. Don't try to analyze the purpose of the question.
- Everything should take care of itself if you listen to the question and answer directly.
- Be careful about fatigue. Some of the most damaging answers can come after the testimony has gone on for a lengthy amount of time and mentally you become fatigued. There is a tendency at that point to become mentally lazy, to not think as sharply and to give the questioner the answer they want just to get it over with and get them off your back. Resist that temptation.
- A spoken answer is necessary, not a nod or uh huh.
- Be careful about making absolute statements; rarely make them. Be sure when you do.
- When asked about specific times, if you generally know the answer, but do not know it precisely, don't let your answer imply that you know it precisely. Say about or approximately where appropriate.
- Many lawyers will start their questioning by saying, "If any question is not clear, or if you don't understand it, ask that it be rephrased." It may be good to respond, "I will try to do that. However if I misunderstand something, I'm not likely to be aware of it at the time, otherwise it wouldn't be misunderstood."
Each case may have its own facts and situations that may require varying these principles. The one principle that doesn't vary is to tell the truth. Lawyers know that they did their job when a client says, "You were much tougher on me than opposing counsel."