Volunteering Information in a Deposition
In my 46 years of practice in the litigation area, I have prepared literally hundreds of witnesses, usually my clients, to be deposed. Among the myriad admonitions I give to such witnesses in preparing them for their depositions is the following: “Listen to the questions, make sure you understand the questions, and then answer only the questions that are asked; do not volunteer information.”
To drive home this instruction, I frequently use the following illustration: “I meet you on the street and, being acquainted with you, ask you where you are going. You answer that you are going downtown, to buy a black hat, your favorite uncle died and you are going to his funeral. What was the question that I asked? Answer: “Where are you going?” The rest of your response is volunteered information. If the questioner wants to know why you are going downtown, wait for the questioner to ask that question, and the next and the next.
Some legal commentators have, however, questioned this kind of standard instruction (see, for example, Kanazawa and Helton, “Preparing Witnesses for Deposition,” For The Defense, DRI, July 2006). They argue that the instruction not to volunteer information creates unnecessary anxiety in the witness and does not promote the goal of the witness, which should be to credibly present truthful testimony that cannot be easily impeached, distorted or misunderstood. They further argue that not volunteering information invites misunderstanding and creates the distorted impression that the witness has something to hide. They further posit that not volunteering information could lead to the witness being more easily impeached at trial for not disclosing facts that should have been disclosed in response to questions at the deposition. According to this line of thinking, not volunteering information undermines the credibility of the witness that is supposed to be testifying to the “whole truth” and “nothing but the truth.”
Furthermore, Kanazawa and Helton maintain that volunteering information can create the following positive effects: First, by volunteering information the witness reduces the possibility that the volunteered information will be excluded from trial because of the failure to disclose the information in a deposition. Second, spontaneously volunteered information appears credible and enhances the impression that the witness has nothing to hide. Third, a longer answer is more difficult to use for impeachment than a short response. Long responses may force the opposing attorney to either read the entire response or select portions of the response and face an objection that the opposing attorney is distorting the record and not reading the entire response.
Nonetheless, as a general proposition, it remains my belief that deponents should, in most situations, be careful not to volunteer information and to answer only the questions that are asked of them. As they say in the military, however, “everything depends upon the situation and the terrain.” In some cases, the standard instruction may be ill-suited. In such instances, the thoughtful attorney will appropriately modify the preparation of the witness.