What Ghislaine Maxwell’s Unsealed Deposition Teaches About Preparing Witnesses for Depositions

By Shiva Hamidinia

December 18, 2020

Although depositions are routine for attorneys, they can be nerve-racking for witnesses, especially for witnesses who haven’t previously been deposed.  A deposition is the opportunity for a party in litigation to obtain oral evidence from a witness that is taken under oath and transcribed by a court reporter.  Preparing a witness can help him or her know what to expect.  The recently unsealed deposition transcript of Ghislaine Maxwell, the late Jeffrey Epstein’s alleged associate, provides a few helpful illustrations of do’s and don’ts for witness preparation.

Deposition Don’ts:

1. Don’t lie.  Don’t cover for anyone.  Following the deposition, several federal perjury counts were brought against Maxwell for alleged untruthful statements she made while under oath.  Tell the truth.  Never attempt to misrepresent facts to protect yourself or help your employer.  Stick to the facts.  A witness should only testify to things he or she personally knows and always tell the truth.
2. Don’t lose your temper or composure.  Maxwell smacked the table after repeated questioning regarding the plaintiff, Virginia Giuffre’s, age when the two first met.  Ms. Giuffre’s lawyer did not hesitate to describe this gesture on the record, stating that: “Ms. Maxwell very inappropriately and very harshly pounded our law firm table in an inappropriate manner. … I know this is a difficult position but physical assault or threats is not appropriate, so no pounding, no stomping, no, that’s not appropriate.”  Don’t argue or get angry, even if opposing counsel is rude or overbearing.  Never swear on the record.  Be polite.  Treat all persons in the deposition room with respect.
3. Don’t offer your own objections to a question.  As Maxwell’s attorney reminded her when she offered her own objection to a question, “You don’t get to object.”  Let your attorney handle objections.  Pause after every question to afford your counsel the opportunity to record their objection.  Unless directed not to answer, answer each question asked.
4. Don’t assume where a question may be going. If asked questions that assume facts that are not true – make it clear that it is the attorney’s assumption not yours.
5. Don’t ramble.  Once finished with your answer, stop talking.  A witness should not offer opinions or estimates (distance, dates, times, etc.) unless he or she has a good basis for knowing the estimate is accurate.  If pressed, but unsure, you can start an answer with “I’m not certain, but I can guess …”
6. Don’t hide negative information from your lawyer.  Make sure your attorney knows everything.  Trust them and let them deal with any negative aspects of your testimony or actions before the deposition to avoid any surprises.
7. Don’t answer by gestures or with answers such as “uh-huh.  ” Answer out loud with words such as “yes” or “no.”

Deposition Do’s.

1. Tell the truth. Never attempt to misrepresent facts to protect yourself or help your employer.
2. Listen and wait.  Listen carefully to the question being asked.  Pause, think, and answer based on what you know, personally (not what others have told you).  A good way to do this is to rephase a question and ask yourself how you know the answer to a question before answering.  Pausing after the question also affords your counsel the opportunity to record any objections.  Avoid talking over others.  The court reporter can only record one person talking at a time.
3. Understand.  Make sure you understand the question.  Take care answering and seek clarification on questions that are: compound, assume facts, include prefatory statements, call for speculation, or paraphrase prior answers.
4. Read carefully.  Any document handed to you as an exhibit should be reviewed carefully before you start answering questions.  Even if told to turn to a particular page, you may read the entire document.  If a document is an email, check to see that your email is included on the address line.
5. Take a break.  Ask for breaks when you need them, and when you don’t.  About every hour is a good stopping point to take a breather.  Depositions can be mentally exhausting.  Have a glass of water and snacks stashed nearby to keep hydrated.

In a deposition, witnesses will often commit themselves to a story under oath that cannot later be changed.  All counsel will be evaluating how a particular witness performs during their deposition to determine how effective they will be at trial.  A successful deposition can sometimes prompt settlement discussions, or serve as grounds for a party to move for summary judgment.  For all these reasons, it is important to prepare a witness thoroughly in advance of their deposition.

About the author:

Shiva helps high growth government contractors win, keep, and successfully perform projects.  When litigation is necessary to achieve clients’ objectives, Shiva efficiently navigates matters through state and federal courts in the District of Columbia, Maryland, and Virginia, the Boards of Contract Appeals, the U.S. Court of Federal Claims, and the Federal Circuit.

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