Beware The Words That Might Be Stuffed In Your Deponent’s Mouth

Anyone who has taken or even attended a deposition is at least somewhat familiar with the litany of admonitions that are customary before the substantive examination begins. These include explaining to the deponent, and generally asking her to confirm her understanding, how a deposition works, i.e., don’t answer unless you understand the question, use words not gestures when responding, etc.

I attended a deposition last week of two of my client’s experts for an upcoming trial. The questioning attorney, obviously reading from an outline or script that he either drafted or was provided to him, attempted to get both experts to buy into the following:

“Q. If  you answer a question without telling me you didn’t understand it, I’m going to take the position — if you try to later say you didn’t understand the question — that you did and you were trying to get out from under the answer.  Do you understand that?”

In each instance, although I objected, my deponent ultimately agreed with the statement. I expect if my opponent attempts to use the testimony at trial the judge will probably sustain my objections. But he might not. Which leads me to think I should have better prepared both deponents (both of whom, by the way, are seasoned expert witnesses, very familiar with the deposition process). I will certainly prepare future witnesses for this kind of question, particularly by this particular attorney (whom I do generally respect for his frequent creative, outside-the-box thinking and approach to his cases).

What’s the problem?

The question asks the witness, in a complete vacuum, to buy into a set of circumstances and motivations that have no basis. Folks who have spent time in the world of depositions know that this isn’t a perfect science. Questions are only rarely (if ever) perfect. However, even seasoned experts get swept into the unconscious desire to “help out” the examiner, sometimes answering questions that weren’t asked, were very poorly asked, or supplying missing terms that help a problem question make sense. It’s not fair to ask that witness, who later explains a “bad” answer by suggesting she did not fully understand the question when it was originally answered, to agree in advance that any such effort is really “trying to get out from under the answer.” No.

Hearing a witness try to “back pedal” out of a bad deposition response by suggesting she didn’t understand the question when it was first asked is generally going to be viewed with suspicion by the jury. This is particularly true if it happens more than once. So, it is not a huge issue how the deponent answers the question above. However, the admonitions generally occur at the start of the deposition. If an examiner asks questions like that at the outset and the deponent answers without realizing words are being stuffed into her mouth, there is a good chance that questions and testimony are coming later in the deposition that will create a dangerous record.

So be on the lookout!


  1. Aaron J. Goodman

    Alex,   Interesting article.  Being a fellow defense lawyer, in my “deposition preamble” questions, I usually say something far less obvious and confrontational than your opposing attorney.  After something to the effect of “if you don’t hear or understand any of my questions, let me know and I will repeat or rephrase them,” I follow up with “However, if you give me an answer to my questions, may I assume that your answers are true, complete, and accurate?”  They always say “yes” and it never draws an objection.   Nothing novel or brillant, but it seems to work in my cases.  Do you do something similar?

    Aaron J. Goodman


    • Yes, although I might object to yours, too, because it is compound and technically calls for speculation. For example, if you later ask a question like, “How fast was the other car traveling?” You’re really just asking for the witness’s estimate, unless the witness is a highway patrol officer with a speed gun. But with your admonition question, you end up asking the witness to commit that his estimate is “accurate.” We’re splitting hairs here, and I don’t want it to seem like I’m the kind of jackass who splits hairs (I’m surely a jackass, but not the hair-splitting type). In general, though, I don’t think it’s improper to create a record you can use if the witness attempts to heavily back-pedal at trial, just not as aggressive, perhaps, as my opponent was last week.


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