How to Prepare for a Deposition

Deposition is an interview session where an attorney asks questions to a witness or complainant who is expected to answer in the spirit of cooperation.  Failure to cooperate may result in sanctions under the authority of the judge (who authorizes the Agency to make discoveries by means of deposition, interrogatories (a written questionnaire), and request for production of documents).

(The following may also apply to a hearing or fact-finding conference.)

The session is transcribed by a court reporter.  You will be sworn in.  The questions and answers will be recorded and will become part of record.  You may be charged for perjury for intentional lying, not for mistaken belief or information or for honest inconsistencies.

The attorney may ask if you had a deposition before.  If you did not, the attorney may instruct you of the following: Do not nod or shake your head for an answer.  The court reporter cannot record body gestures. Don’t guess the answer.  But estimation is acceptable, etc.

➤ Some do’s and don’ts when you are deposed by an attorney:

➤ Some Don'ts:

• Do not explain.
• Do not try to make the opposing counsel understand the issue or the circumstances, unless asked to explain.
• Don’t go back to the beginning or explain how things have developed into what it is today.  Stick with the date asked in the question.  Only answer about the event asked and referenced by the time or date mentioned in the question.
• Do not assume that the question follows from the previous one or will lead to the next question.  Just focus on the question posed at the moment and answer it.
• Do not expect the opposing counsel to sympathize with you.  (When he or she says she does, watch out.)
• Do not show carelessness, disrespect, or charlatan attitude about the attorney or about the session.
• Never burst out in anger or in violence.  (No matter how egregious the question is.)  You can object to the question but will have to still answer it (unless stopped by the judge or the fact-finder—not applicable to a deposition).
• Do not provide more information than necessary or what was asked.
• Do not try to guess the intention behind the questions.
• Do not think too much when answering.  Just tell what you know or saw, not what you think you saw or what you think should have happen.
• Don’t believe everything that is said by the opposing counsel off the record.  Whatever is said off the record counts for nothing.
• Do not be pressured to commit to an answer.  Feel free to revise the answer based on new information, new records, or more clear memory.

➤ Some Do's:

• Answer with Yes or No first, or stop thereafter. (About 90% of answers can be dealt with by saying Yes or No and no more.  The shorter your answer, the shorted the session will be and less questions.)
• If 90% of questions can be handled with yes or no, the rest may well be handled with just providing names or dates.  
• Explain only when asked.  Explain as simply as possible.  Give the conclusion or culminating event first, then explain what preceded or caused it, for example.
• Answer to the best of your knowledge, information, and belief.  (Answer even if you don’t have an evidence to support your answer.)  Hear-say evidence is allowed in EEOC hearing process.
• If you don’t remember or don’t know the answer, say so--but not too frequently.
• Ask for break time and lunch time.  If you are still employed by the Agency you filed against, you are on the clock.  (Don’t be scared by an attorney warning you that the deposition may go on well into the evening.  He or she is dying to get out of there as much as you are.)
• Ask for permission to consult records or memo you prepared for the session in order to “refresh your memory.”  Feel free to refer (and take time to refer) to the Report of Investigation (ROI), the Investigation File (IF), or the Investigation Report (IR), if you have one.
• If you feel sick, uncomfortable, or feel intimidated, say so on the record and explain why.  
• Say as much as possible only on record (that is, when the stenographer is recording).  In other words, do not say important things when stenographer is not recording.
• You can enter your objection to the question on record.  But you must still answer the question.  (At a hearing, when raising an objection, the ground for raising it must be stated.  The opposing counsel responds to the objection.  Then the judge rules on the objection either to sustain or overrule it.  At a deposition, an objection can only be entered on record without stating the ground for it.)
• If you have a representative, feel free to consult with him or her in private before the question is posed or after answering.
• Go over the Notice of Accepted Issues and/or Partial Dismissal letter Agency EEO director issued shortly after your filing a form and/or amended complaint. Agency attorney will go over these issues and ask you about the details.
• Agency attorney may also ask you about the discovery responses you provided to the Agency in response to Agency's Interrogatories, Request for Production of Documents, and Request for Admissions.
• You have a right to break and lunch.  
• Your deposition time should be paid as your official time.
• Any body language that is intimidating or threatening or any such tone of voice should be indicated on record by stating and describing what the attorney is doing to you with such behavior.
• If the room is too hot or too cold, it should be stated on record.
• Be aware that the room you are deposed in may not have internet or cell phone transmission.

➤ More on How to Prepare for a Deposition:

➤ The Why Questions:

Most difficult and usually most important questions are the “why” questions.  In particular, the following question, in my opinion, is important: “Why do you think you were discriminated against based on or because of your sex/age/race/disability/religion?”   A good answer is: “So and so was not disciplined or cited even though he received more customer complaints than I did” or something to that affect.  In short, you answer by comparing yourself against the others in the comparable situation or rank (“the similarly situated individuals”), and by showing your supervisor’s disparate or more favorable treatment toward them than toward you under similar circumstances.  

The following question should be objected to, even though it is similar to the one just mentioned: 

“Do you have a direct evidence or hard evidence to prove that you were discriminated against based on or because of your sex/race/age/disability?”

 This question is objectionable because it asks for a direct evidence.  Nowadays no one says to you that you are not, say, hired because you are female or black.  If a manager said that on record, that would be a direct evidence.  You won’t get such an evidence nowadays.  Usually discrimination is proven by circumstantial evidence, not direct evidence.  That’s why the question is objectionable.  Plus, you are not supposed to be able to know what constitutes a circumstantial evidence.  

Circumstantial evidence in discrimination case is evidence showing disparate treatments by a manager between you and the comparable employees in the similar circumstances (“the similarly situated”).   Since discrimination is treating others more favorably than you based on race, sex, age, disability, religion, national origin, etc., you must show how others were treated in comparison to you.  What were the reasons given to you by the manager, when you were disciplined or not hired?  And did the stated reason also apply to others in similar situations?  If so, how did the manager act toward them?

➤ Misleading Questions:

If you don't like part of the question or the answer to a part of the question is No, then the answer should be No for the whole question, even though the answer to other part of the question may be Yes. Such questions are compounded or misleading questions and should not have been posed in the first place, or should be objected to.  For example, consider the following misleading and thus objectionable question: “Did you notify your supervisor about the harassment, even though you knew it to be a false allegation?” should be answered No if you believe the allegation to be true, even though you did notify your supervisor about it. You may want to add: “I knew it to be true and I did report it.”  

➤ The When Questions:

One of the most frequently asked questions is “when?”  You should prepare so that you can answer the “when” questions on important events in the case.  However, if you don’t remember the exact date, say the month.  If not month, say the season (fall, summer, winter, etc.).  If not season, then the year.  “Sometime between 2003 and 2004” is a better answer than “I don’t remember.”  Or “prior to my reporting the harassment” or “before I received the PIP” is better than “I don’t know when.”  People love to tell stories without a single mention of the date it happened.  A fact cannot be established if you don’t anchor it with a date.  Statements without dates can easily be characterized as “general” or “vague” and as such can easily be dismissed.

➤ Some other remarks:

Depositions are more less in control of the one who calls it.  If the Agency called it, it determines the time, location, and how long it lasts.  Agency only needs to notify you in advance as much as possible.

As already stated, if you are currently employed by the Agency you filed against, you are supposed to be on the clock for the deposition or the hearing.  Be sure to ask for reimbursement for travel and gas, if applicable.

The objective of a deposition, if called by the Agency, is to get out of there as soon as possible.  More you say, more questions you will invite, and the longer the session will be.

To stress this once again, most questions can be handled by one word: Yes or No.  “I don't know” is a valid answer.  But don't say it when you do know or when you can estimate.

Again, most other questions can be handled by answering: what, where, or when.  Again, don't explain more than that, unless asked to explain or to elaborate.

Know what you stated in the complaint and try to recall dates, names, what was said by the manager when you reported or complained.  Names of the witnesses are important to remember.  If you don’t have their contact information, you can always provide them later.

Don't try to prove the case at the deposition.  It is a wrong place to do so.  Sometimes it is better not to show your A’s card or all of your cards at the deposition.  If you do, you are only giving the opposing counsel more chance to prepare to discredit your evidence.

Agency may show you some documents from the file.  Examine carefully before answering any questions regarding the documents.  If the document is suspicious or if you have never seen it, say so.  

Don't argue with the attorney.  Just say no or I disagree or that's not true; and leave it at that.

When asked about a document, and if you don't remember if you have it or not, you can say: “I will look to see if I have it; and if I do, I will provide as soon as possible” or something to that affect.

If a document was talked about or was presented to you early on in the deposition, you can always request to see it once again, if you need to, later during the deposition, in order to clarify or amend your answer.  

You cannot ask to see what the other attorney has in her file, unless the document was mentioned or presented during the deposition.

If you read all these "do's" and "don'ts," you deserve a break.  Here are some funny exchanges between the witness and the attorney taken from a real court transcript..  Click the button below.

Disclaimer

• Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.
• Mr. Lee does not practice law and cannot provide attorney-client protection privileges.  However, as any union shop steward can, Mr. Lee can represent federal employees at any administrative proceeding including those referenced above.
• Mr. Lee cannot and does not represent clients at court proceedings.