Friday, July 13, 2007

How Not to Answer Questions at Deposition

This is an article previously posted on my website: or

In the article, I have written about a recent deposition taken in a civil case arising from a dispute between one business owner (my client) against the other owner who had improperly used the company's funds for his own benefit with his co-owner's permission.

The deposition became "colorful" when the witness was confronted with the checks that he had written to his own creditors out of the business' bank account.



In our litigation practice one of the most important tools we have at our disposal is the deposition. In a deposition, we are able to ask questions of parties to the proceeding, and other witnesses. The question and answer session is transcribed by a court reporter. Prior to any of our clients having their depositions taken, we always insist on meeting with our client to discuss the “do’s” and “don’ts” of deposition testimony. One of those “don’ts” is: “don’t be argumentative and hostile to the lawyer asking you the questions;” another is “don’t use profanity.”

What follows is an excerpt from a recent deposition that illustrates how NOT to answer questions in a deposition.

Q. Why didn't you just pay [your lawyer] out of your own personal bank account?
A. Because I didn't see a need to.

Q. I'm showing you what's been marked as Exhibit Number 6 to this deposition.

[The document was a photocopy of a business check written by the witness to one of his personal creditors.]

Can you tell me what that is?

[The answer could have been as simple as “a copy of a check.”]

A. That is an installment loan from the business to Suntrust Bank, endorsed by me on the -- on the 12th 19-05, basically further saying that since the business wasn't making any money, I could pay some personal payments.

[Remember - the document he was to identify was a copy of a check.]

Q. Okay. That's a check that you wrote and you signed off the company's account to pay a debt that you had with Suntrust Bank, correct?

COUNSEL FOR DEFENDANT: I'm going to object. I think he's just answered. He said it was a business loan.

COUNSEL FOR PLAINTIFF: He wasn't answering in a language that I understand.


Q. Well, that check is not an installment loan, correct?

COUNSEL FOR DEFENDANT: You're asking him is this check an installment loan?

COUNSEL FOR PLAINTIFF: You know, whatever anybody else thinks of anybody in this room, I asked what that document is and the gentleman said it's an installment loan.

THE WITNESS: That's right.
Q. It's a check, right? It's a copy of a check?
A. I don't know where you're going, my friend, but, yeah, it's a *%@ing check.

[It’s not usually a good idea to use profanity on the record at a deposition]

Q. Right.
A. What is wrong with you?

[The witness is being argumentative and hostile]

Q. That's why it's an easy question to answer.
A . That's what I said. I answered. It's a check.
Q. You said it's an installment loan.
A. It's a check for an installment loan. That's what I said.
Q. Now, and you wrote it.
A. *%@ing moron.

[This is additional profanity and a personal attack on counsel: that is never appropriate at a deposition]

COUNSEL FOR DEFENDANT: Hey, watch your language.


Q. You wrote it, correct?
A. Yes, I did.
Q. And you signed it?
A. I did.
Q. And you paid one of your creditors with that money?
A. Absolutely, with pleasure.

In this excerpt, a witness was being asked a simple question: to identify a document being shown him at the deposition. The document was a check written by the witness from a corporate bank account to pay his personal expenses. One can infer that because the witness felt “caught” by the question, he answered evasively, and then directed his defensiveness at the lawyer asking him the questions by using profanity.

Because deposition transcripts are routinely used in court filings, for impeachment at trial, and for other purposes, it is not appropriate to turn a deposition into an argument, particularly an argument laden with profanity.

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