Preparing for a Texas Deposition

Court cases are won and lost on the strength of the evidence. The biggest piece of evidence is usually the testimony of the parties and witnesses. This is why at the Schneider Law Firm we spend a lot of our trial preparation time with or clients reviewing their anticipated testimony. As a rule of thumb I like to prepare with my client a minimum of three hours for every one hour we anticipate they will testify.

There are two primary situations in which testimony is taken in Texas. The first is obviously in a court room with a judge and/or jury listening. The other is in a deposition. A deposition is a procedure whereby attorneys are allowed to question witnesses under oath outside the courtroom setting and prior to the trial.

In Texas criminal cases such as assaults, DWI, or drug cases, depositions are extremely rare. Testimony preparation is therefore geared toward the courtroom environment. In civil cases such as divorces, custody suits, or personal injury suits, depositions are routine and are often given great weight when deciding whether a claim has merit.

In either of these scenarios it is important to be prepared. In an attempt to get my clients prepared  for a Texas deposition I usually review the following list at the beginning of each meeting. Even though this is list specifically written for deposition preparation,  most suggestions contained apply equally to just about any scenario where testimony is being taken.

Deposition Prep Checklist

1.) Tell the truth
• Perjury in an official proceeding is a 3rd Degree felony
• Even falsehoods on a minor or irrelevant issue can be used to destroy your credibility at trial.
• Note however, telling the truth does not mean volunteering information…answer truthfully, but only what is ASKED.

2.) Bring nothing with you in the room unless I have reviewed and approved
• This includes personal notes
• TRE 612 allows an examiner to review any notes or documents used to refresh a deponent’s memory.

3.) Listen carefully, then pause
• You should listen to each question carefully
• Questions may not be as simple as they seem
• Do not be afraid to ask for clarification or rereading if the question is not understood
• The record of the transcript WILL NOT contain your pauses, so don’t worry about taking time to formulate your answers in your head
• Pauses also give me a chance to object if necessary.

4.) If a document is presented, read it CAREFULLY

5.) Private conferences with me during the deposition are improper and generally not allowed
• The only exception is to decide whether a question violates a privilege (Attorney/Client, Trade Secret, etc.)
• We can conference during breaks
• Despite this rule, I would rather you ask for a conference than answer a question untruthfully, inaccurately or in excess

6.) Discuss with me during a break if you need to change an answer
• Don’t just blurt it out on the record
• Small, technical changes can be when we are reviewing the transcript

7.) Qualifying answers
• When appropriate use the terms “To the best of my recollection,” or “I believe it was/is…”
• DO NOT qualify answers that you are factually certain about

8.) NEVER Speculate
• If you don’t know an answer, say so!
• Unless specifically asked for an opinion, don’t give one.
• If asked for date or time, only answer if specifically known. “On or about…” “I believe it was…”

9.) Answer only the question posed
• Don’t try to guess the next question
• Short answers are best
• Yes/No are ideal so long as accurate and not misleading
• If, and only if, a short answer is misleading should you explain

NOTE: Depositions are only one phase of a case…you will get time in trial to clarify your answers and present your own evidence

10.) If I say don’t answer, then don’t answer

11.) Objections are ruled on at a later date
• Most of the time you will still need to answer the question…but see #10
• Objections in a deposition are very limited and are usually just “place markers”
• Exceptions: Not Relevant, Privileged

12.) Don’t promise future help
• The law requires you answer questions, not make agreements
• Don’t agree to be available, produce anything, or look up anything

13.) Don’t get angry or emotional or rattled
• Don’t argue
• Don’t address the opposing party
• No name calling or abusive language
• Don’t project feelings about OP on the OC

14.) The examiner is NOT your friend
• Be polite, but vigilant
• Do not concern yourself with convincing the examiner
• Do not be concerned with the examiners confusion…if you have answered truthfully you have done your job

15.) Speak Clearly

16.) Be prepared for sensitive questions
• Inform me of worrisome issues so we can discuss

17.) Don’t assume the examiners summary of facts is correct
• Listen carefully
• If you have no personal knowledge of the summary then say so
• Don’t let examiner put words in your mouth

18.) If I object stop talking. Don’t start again until directed

19.) My objections may give hints as to what or how to answer

20.) No duets

21.) If you need a break, let me know

This is meant as a general overview only and is by no means a substitute for the advice of a good lawyer that is tailored to your situation.

P. Micheal Schneider

The P. Micheal Schneider Law Firm P.C.



Family Law