Depositions and the Consequences of Answering I Don’t Know

Depositions and the Consequences of Answering I Don’t Know

What are the possible consequences of saying I don’t know during a deposition? A Deposition is a sworn pretrial testimony that helps attorneys prepare for trial.  Answering I don’t know during the course of a lawsuit may be helpful but the reality is that it can also hurt. One thing is certain, is that saying I don’t know is going to lock you into your testimony. If you have a different answer later on, you have a problem.

When you bring a lawsuit, the defense will have an opportunity to question you and that’s known as a deposition.  The defense lawyer will question you in your attorney’s office. There is no jury present but instead there is a court reporter. The court reporter will record all of the questions and all the answers that you give. Your answers will be the basis of your pretrial testimony. There is not a judge or a jury during your deposition. However, everything you say during the deposition session is your testimony. It carries the same weight as it will at the time of trial.

It is very important to understand that telling a little white lie during a deposition can have serious consequences. Literally the other sides job is to find evidence to contradict every statement you make under oath. At the deposition you will be asked questions that you will not know the answer to.  The important thing to remember, is it is OK to say I don't know.

No one can remember every single thing. After the deposition, your attorney will send you a copy of the transcript to read over and correct if needed. The defense attorney will use this opportunity you had to correct any changes to lock you in. This is why it is crucial to prepare for a deposition and take it seriously. The defense attorney will try and use it against you to contradict your testimony at trial and how you answered questions during your deposition. The defense attorney is going to try and show that there are significant inconsistencies between the testimony that you gave pretrial in your attorney’s office and the testimony that you are giving at trial.

For example, in a car accident case. A question about your speed at the time of the accident will likely come up. During your deposition you say my attorney told me not to guess and you say I don’t remember because it's the truth. The defense attorney will probably try and get you to give an approximation or give a range of speed, but again, your attorney has told you not to guess, so you answer that you don't know.

At trial the defense attorney is now cross-examining you. During your cross-examination he asks the same exact question that he did at the time of your deposition. Remember, the jury does not know anything about what went on during your deposition. For all they know, you’re being asked the question of how fast were you traveling at the time of the crash for the first time. However, at trial you say you were traveling at 35 mph. Now you may have a credibility problem. Remember, an answer of I don't know locks you in, and is as significant as saying any speed.

The defense will likely shake their heads and pull out the transcript from your deposition. They will attack your credibility with your previous sworn testimony. If there is a discrepancy between what you said during your deposition and what you remember at trial, your attorney should ask you what the source of the discrepancy is and why you remember the speed now but not then. Your attorney will likely be able to easily explain why you can remember now, and it will take the wind out of the defense's sails.

Your attorney has an obligation to explain to the jury why your answer is so different from your earlier testimony. Different answers in trial than depositions are a fact of life but usually they are easily explained if you communicate with your attorney. Remember, the power of saying I don’t know. It may help you, or hurt you, or it could do both but it for sure locks your answer in.

Daniel S. Garner
Written by Daniel S. Garner

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