Brigham Cluff: My number one tip for giving a deposition is to tell the truth.
I spend a lot of time with clients preparing them to have their deposition taken, and many times, in fact, probably most of the time, the client will begin our meeting by telling me, “Hey, don’t worry. There’s really no preparation required for me, because I’m just going to tell the truth.”
Even after they give me that assurance, I want to make sure that they understand what that really means, to tell the truth. It is certainly accurate to say that honesty is the best policy, and most especially when you are giving sworn testimony.
But, sometimes it’s not as easy to be honest as you think. It’s not sometimes a question of whether a person is deliberately trying to be dishonest. Oftentimes, a witness will be dishonest by accident, and I’ve seen it happen many, many times when I’m taking the deposition of a witness, where I can tell going into the deposition, a witness really has a desire to be honest. They have an intention to be honest, but because of the way that the questioning unfolds, sometimes they paint themselves into a situation where they feel the need to be dishonest in order that they can be consistent with something that they said earlier in their deposition, or they feel the need to be dishonest because they feel embarrassed about what the truth actually is. Maybe it’s something that they haven’t contemplated before they started giving their deposition testimony.
I’ll give you an example of this. When a witness is asked about their recollection of some event, and oftentimes when a deposition is being taken, the event in question will have happened years ago, sometimes three, four, five years ago. It is very difficult to recall the specifics, the details of events that happened that long ago. Yet, I have seen it hundreds of times. Witnesses get into depositions, and they attempt to recall details that there’s really no way they can recall. That is an example of being dishonest.
The witness may be, in fact, trying to reconstruct what they think actually happened, what they think they actually saw, or what they think they actually heard, but that is not what the witness is being asked to do in a deposition. They’re not being asked to say what they think happened. They are asked to explain their recollection of what happened. Sometimes that recollection is dim, and to be honest, a witness must admit in that situation that they don’t recall, or that they’re not sure, and that is the fastest way that a witness gets into trouble that I’ve seen is they try to give a description of events that they actually do not have a recollection of. That they are, in fact, only trying to reconstruct based on some of the other things that they do remember.
On the other hand, it’s, also, not honest to say, “I don’t recall,” to every question that you’re asked, usually. Usually there is some recollection there. Even though your recollection may not be absolutely perfect, you still need to describe the recollection that you do have, if you are being asked about it.
Justin Bieber had the pleasure of having his deposition taken recently in Florida, and he was asked the question at one point in time as to whether he had ever been to Australia.
Other Lawyer: In Australia ever?
Justin: I don’t know if I’ve been to Australia. Have I been to Australia?
Brigham Cluff: I know that Bieber is a big shot, and a busy man, and has people to keep track of all those sorts of things, but everyone can remember whether they’ve been to Australia, so that would be a good example of a situation where you would not want to say, “I don’t recall,” because clearly that is not true. You remember those kinds of events. You remember if you went to Australia.
On the other hand, you don’t remember if you tied your shoes in the morning, your left foot first or your right foot first. You don’t remember the specifics of brushing your teeth in the morning. In spite of that, I’ve actually seen witnesses testify as to those kinds of specific details that happened years and years ago.
That is a summary of what it means to be truthful when you are giving sworn testimony in your deposition.
Please watch my other videos regarding my top seven tips for how to give an effective deposition. Click through on any of these options that you see on your screen right now, and you’ll find me going into greater detail and analysis.
The client will begin our meeting by telling me, “Hey, don’t worry. There’s really no preparation required for me, because I’m just going to tell the truth.”
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And I can’t tell you how many times I have seen a witness who starts out strong in the deposition wear down.
Please view my other videos on my top seven tips for giving an effective deposition. Click through on any of these options and you’ll find me going into greater detail and analysis: