15 Things to Not Say at a Deposition

TL;DR: During a deposition, never guess, volunteer extra information, use absolute words like “always” or “never,” express opinions, or argue with the questioning attorney. Your testimony is under oath, and any misstatement can damage your credibility and the outcome of your case. Stick to the facts you know, answer only the question asked, and consult with your lawyer when unsure. The best approach is to be truthful, brief, and clear in every response.

Key Highlights

• Never guess or speculate about facts you do not know for certain.
• Avoid absolute terms like “always,” “never,” or “every time.”
• Do not volunteer information; answer only the specific question asked.
• Refrain from expressing personal opinions unless directly asked for one.
• Never argue with or show hostility toward the opposing counsel.
• Do not use sarcasm or attempt to be funny, as it will not translate in the written transcript.
• Avoid starting answers with “I think” when stating a fact.
• Never lie, exaggerate, or misrepresent the truth.

A deposition is a standard procedure in the discovery phase of a lawsuit, where individuals provide sworn, out-of-court testimony. In the United States civil justice system, hundreds of thousands of depositions are conducted each year as attorneys gather information to build their cases. This process allows lawyers from both sides to understand the facts, assess a witness’s credibility, and preserve testimony for potential use at trial. Unlike a casual conversation, a deposition is a formal legal event where every word is recorded by a court reporter.

The entire proceeding is governed by specific legal standards, such as the Federal Rules of Civil Procedure or corresponding state rules. The key participants include the deponent (the person being questioned), their attorney, the opposing counsel (who asks the questions), and the court reporter. The court reporter creates an official transcript, a word-for-word record of the questions, answers, and any objections. This transcript becomes a critical legal document that can be used later to challenge a witness’s memory or point out inconsistencies if their testimony changes in court.

While the format appears simple, one person asks questions, and another answers, the words a deponent chooses carry immense weight. A single careless phrase can create ambiguity, open new lines of inquiry, or provide the opposing side with an advantage. Understanding what not to say is just as important as knowing the facts of your case. This discussion will identify specific words and phrases to avoid, explaining the strategic reasoning behind each one to help you protect your credibility and support your legal position.

The Dangers of Speculation and Guesswork

The foundation of credible testimony is factual accuracy. When a deponent moves from what they know to what they think might have happened, they introduce uncertainty that opposing counsel can exploit. Stick to what you personally saw, heard, or did.

1. “I guess…” or “I suppose…”

Using phrases like “I guess” or “I suppose” immediately transforms a statement of fact into a guess. It signals to the questioning attorney that you are not certain about your answer. In a legal context, uncertainty is a weakness. If you state, “I guess the car was blue,” the opposing lawyer can later argue that you weren’t sure about the color and that your memory of other, more important details might be equally unreliable.

Your job as a deponent is not to be helpful by filling in blanks. It is to provide the facts as you remember them. If you do not know an answer, the correct and most powerful response is simply, “I don’t know” or “I don’t recall.” This is a complete and acceptable answer. It is truthful and prevents you from creating a false record.

• Example Scenario:
  • Question: “What time did you leave the office on Tuesday?”
  • Poor Answer: “I guess it was around 5:15 PM.”
  • Better Answer: “I don’t recall the exact time.” or “It was late afternoon, but I don’t know the specific time.”

2. “I think…”

The phrase “I think” is problematic because it blurs the line between fact and opinion. If an attorney asks for your opinion (e.g., “What did you think of the proposal?”), then using “I think” is appropriate. However, when asked for a factual detail, using “I think” undermines your certainty.

Consider the difference between “The meeting started at 9:00 AM” and “I think the meeting started at 9:00 AM.” The first is a statement of fact. The second is a statement about your memory of the fact, which makes it sound less definite. Opposing counsel can seize on this. They might ask, “You only think it started at 9:00? You’re not sure, are you?” This can make you second-guess yourself and appear less confident. Unless you are explicitly stating a belief or opinion, try to state facts directly.

3. “Maybe…” or “Probably…”

Similar to guessing, words like “maybe” and “probably” introduce speculation. A deposition is not the place for theories or possibilities. It is about your direct knowledge. If you say, “Maybe he read the email,” you are testifying about something you do not actually know. Did you see him read it? Did he tell you he read it? If not, you cannot testify to it.

Attorneys are trained to listen for these qualifying words. When they hear “probably,” their next question will be designed to expose that you are not speaking from direct knowledge. This can lead you down a path of answering hypothetical questions, which is dangerous territory. Stick to what you know for sure. If you are not sure, it is perfectly fine to say so.

Avoiding Absolutes and Exaggerations

Absolute statements are rigid and often easy to disprove. A single exception can invalidate your claim and damage your overall credibility. Honesty and precision are your best tools.

4. “Always” or “Never”

Words like “always” and “never” are traps. Human behavior is rarely 100% consistent, and making such a definitive statement invites the opposing counsel to find a single instance where it is not true. If they succeed, they can argue that if you were wrong about this, you could be wrong about other things too.

For instance, if you are asked about your driving habits and you say, “I always use my turn signal,” you are making a very bold claim. The other side might have hired a private investigator who followed you for a day and recorded you changing lanes once without signaling. That single piece of evidence would completely discredit your statement and, by extension, your reliability as a witness.

• Instead of “Always/Never,” use more accurate phrasing:
  • “I generally…”
  • “My common practice is…”
  • “On that occasion, I did…”

This phrasing is more honest and much harder to attack.

5. “To be honest…” or “Honestly…”

This is a common verbal tic that can have unintended consequences in a legal setting. When you say, “To be honest…” or “Let me be frank…,” you imply that your previous statements might not have been entirely truthful. You are under oath for the entire deposition, which means you are legally obligated to be honest in every single answer.

Prefacing a statement with a declaration of honesty is unnecessary and can make a jury or judge suspicious. It gives the opposing lawyer an opening to ask, “So you weren’t being honest with me in your last answer?” Let your clear, factual answers speak for themselves. The truth does not need a special introduction.

6. Any Exaggeration or Lie

This is the most important rule. Lying under oath is perjury, which is a serious crime. But beyond the legal risk, getting caught in even a small lie can destroy your entire case. Credibility is everything. If an attorney can prove you lied about one thing, they will argue that none of your testimony can be trusted.

Lawyers prepare for depositions by gathering documents, emails, photos, and other evidence. They often know the answers to many of their questions before they ask them. They may ask questions specifically to test your truthfulness. If you exaggerate your injuries in a personal injury case or misrepresent your role in a business dispute, you risk being confronted with evidence that directly contradicts your testimony. The damage from being caught in a lie is almost impossible to repair.

The “Less is More” Rule: Volunteering Information

A deposition is not a conversation. Your goal is not to be friendly or helpful to the opposing counsel. Your goal is to answer their questions truthfully and concisely. Every extra word you provide is a potential new lead for them to follow.

7. Answering a Question That Wasn’t Asked

Listen carefully to the exact question being asked. Then, answer only that question. Do not add background, explain your reasoning, or provide additional context unless you are asked for it. Volunteering information is one of the most common mistakes deponents make. They feel a need to explain themselves or tell their side of the story. A deposition is not the place for that; trial is.

• Example of Volunteering:
  • Question: “Were you at the project meeting on May 1st?”
  • Poor Answer: “Yes, I was, but I arrived late because traffic was terrible, and honestly, I didn’t think the meeting was going to be productive anyway since John hadn’t sent out the agenda.”
  • Correct Answer: “Yes.”

The poor answer just gave the lawyer several new topics to explore: Why were you in traffic? Where were you coming from? Why did you think the meeting wouldn’t be productive? What is your relationship with John? The correct answer, “Yes,” is truthful, complete, and shuts down any further inquiry on that specific point. Let your attorney guide you on when more detail is needed.

8. “I’m not sure, but…”

This phrase is a red flag for volunteered information. The deponent correctly states they are unsure but then feels compelled to offer a guess or a theory anyway. The information that comes after the “but” is almost always speculation.

• Example:
  • Question: “Do you know who else received the memo?”
  • Poor Answer: “I’m not sure, but I would think Sarah in accounting probably got a copy.”
  • Correct Answer: “I’m not sure.”

In the poor answer, you have now introduced Sarah’s name into the record. The lawyer will now want to know why you think she got a copy, what her role is, and may even decide to depose her. By stopping at “I’m not sure,” you provide a truthful answer without creating new complications for your case.

Maintaining Composure and Professionalism

The opposing counsel is not your friend. They may act friendly to get you to lower your guard, or they may be aggressive to provoke an emotional reaction. Your job is to remain calm, polite, and professional, no matter the tactic.

9. Arguing with the Attorney

It is very likely that the opposing attorney will ask questions you find annoying, repetitive, or even offensive. This can be a deliberate strategy to make you angry or flustered. An emotional witness often gives careless answers. Never take the bait. Do not argue, raise your voice, or get defensive.

Your attorney is in the room with you for a reason. They are there to protect you. If a question is improper, your lawyer will object. Let your lawyer do their job. Your role is to remain calm and answer the questions factually. Arguing with the person asking the questions only makes you look uncooperative and hostile, which can be used against you later.

10. Sarcasm or Jokes

A deposition transcript is a flat, black-and-white document. It does not capture tone of voice, facial expressions, or intent. Sarcasm, jokes, and “off-the-cuff” remarks almost always read poorly in a transcript. What you think is a witty comeback can look like a shocking admission when read aloud in a courtroom.

• Example:
  • Question: “You spent over $5,000 on a client dinner?”
  • Sarcastic Answer: “Yeah, we ordered solid gold plates.”
  • How it reads in the transcript: “Q: You spent over $5,000 on a client dinner? A: Yeah, we ordered solid gold plates.”

This makes you sound flippant and dishonest. A jury will not know you were joking. The correct approach is to be straightforward and serious at all times.

11. “That’s a stupid question” or Any Insult

Insulting the opposing counsel or commenting on the quality of their questions is a losing strategy. It makes you appear arrogant and difficult. It can also be interpreted as you trying to evade a question you do not want to answer. Maintain a respectful demeanor throughout the process, even if you feel the lawyer does not deserve it. Politeness and professionalism reflect positively on your character and credibility.

Phrases That Signal a Lack of Preparation or Understanding

Your testimony should be your own, based on your memory of events. Certain phrases can suggest that your answers are not authentic or that you are not taking the process seriously.

12. “My lawyer told me to say…”

This is one of the most damaging things you can say. It immediately destroys the credibility of your testimony by suggesting that your answers are not your own but are instead a script fed to you by your attorney. It opens the door for the opposing counsel to ask a series of questions about your preparation, including everything you discussed with your lawyer.

While you absolutely should prepare for a deposition with your lawyer, your testimony must be based on your own recollection. Your lawyer will help you understand the process and how to answer questions truthfully and concisely, but they will not tell you what to say. Never mention your conversations with your attorney. Those communications are privileged.

13. “I don’t understand the question” (when you actually do)

Using this phrase as a tactic to stall for time or avoid a difficult question is usually transparent and can make you look evasive. However, it is critically important to use this phrase when you genuinely do not understand a question. Do not guess what the lawyer is asking.

Questions in a deposition can sometimes be long, complex, or contain multiple parts. They might include legal jargon or words you do not know. If you are confused in any way, you have a right to ask for clarification.

• It is perfectly acceptable to say:
  • “Can you please rephrase the question?”
  • “I don’t understand what you mean by the term ‘fiduciary’.”
  • “That question has two parts. Which one would you like me to answer first?”

Answering a question you do not fully understand is a recipe for giving an inaccurate answer.

14. “Off the record…”

In a deposition, almost nothing is “off the record.” The court reporter is recording everything you say from the moment the deposition begins until it ends. Casual remarks, side conversations, and comments made during a break can all potentially end up in the official record if a lawyer refers to them. Assume you are being recorded at all times. Do not make small talk with the opposing counsel or anyone else. Direct any questions or comments to your own lawyer.

Protecting Your Case and Credibility

Every word you say should be chosen to be accurate and to avoid unintended admissions. Some common courtesies can be misinterpreted in a legal context.

15. “I’m sorry”

In everyday conversation, “I’m sorry” can mean many things. It can be an expression of sympathy, a way to apologize for a minor interruption, or a simple courtesy. In a legal deposition, especially in a personal injury or breach of contract case, it can be interpreted as an admission of fault.

For example, in a car accident case, if you say, “I’m so sorry the other driver was injured,” the opposing counsel may later frame that as you taking responsibility for the accident. While you may feel sympathy, the deposition is not the right venue to express it. Avoid using the words “I’m sorry,” “I apologize,” or “It was my fault” unless your lawyer has specifically advised you that admitting fault is part of your legal strategy. Stick to the facts of what happened without adding apologetic language.

Conclusion

A deposition is a high-stakes event where your words can significantly impact the direction and final result of your legal case. The key to a successful deposition is not about “winning” or outsmarting the other side’s attorney. It is about providing truthful, accurate, and precise testimony that does not create new problems or undermine your credibility. The principles are straightforward: be honest, be brief, and be calm.

Remember that a deposition is not a natural conversation. It is a formal, strategic question-and-answer session. By avoiding speculation, absolute statements, volunteered information, and emotional reactions, you can present your testimony clearly and effectively. Every answer should be a carefully considered response to the specific question asked, and nothing more. The power of saying “I don’t know” or “I don’t recall” when it is the truth cannot be understated. It is a complete answer that protects you from the dangers of guessing.

The single most important step you can take to prepare for a deposition is to work closely with an experienced attorney. A skilled personal injury lawyer can help you review the facts of your case, anticipate the types of questions you will face, and conduct practice sessions to build your confidence. They will be by your side during the deposition to object to improper questions and ensure your rights are protected. If you are facing a deposition, do not go through it alone.

Your testimony is a critical piece of your legal journey. Preparing properly ensures that your story is told accurately and without creating unintended weaknesses. To discuss how we can help you prepare for an upcoming deposition and protect your interests, contact Wetherington Law Firm for a free consultation. Taking action now is the best way to ensure you are ready for the questions to come.