A seasoned litigator in patent disputes shares advice for engineers about how to testify-and how not to testify--in a deposition.
One reason why lawyers make objections is to help you, the witness, notice that something in the question makes it difficult to answer and to be careful. You should not have to answer a question that is vague. It makes it too easy for the lawyers on the other side to present your answer out of context in a brief.
If a question is ambiguous, ask for clarification. Once you understand the question, ask yourself if you really know the answer or are guessing. If you are not sure, say so.
Answer questions as clearly and briefly as you can. If you cannot answer a question in one or two sentences, something might be wrong with the question. Some of us are used to speaking in paragraphs in our daily life, but it is not a good way to testify.
You will want to be especially careful when testifying about documents. Again, ask yourself if you know the answer or if you are just reading the document. Sometimes a document says something really harmful to your company, but it might not be admissible because, for example, the author is unknown or cannot be found to testify.
Frequently, a lawyer will show a witness a document and then ask if this is a business record of the company. “Business records” are an exception to the rule against hearsay, under some circumstances.
Generally, business records are something you would refer to and rely on when making decisions. Unless you are sure something really is a business record, don’t admit that it is. You can’t assume a document is a business record that qualifies for the exception just because your company is a business and some packrat kept this juicy-sounding document.
Even the most unpleasant, harrowing deposition has to come to an end. In a federal court case, the default rule is that a deposition lasts for seven hours on the record, not counting lunch and breaks. There are exceptions, but you should be told well in advance if the deposition is expected to take longer.
When the party that asked for your depositions is finished questioning, the lawyer defending the deposition has the opportunity to ask you questions. If you have been worrying that an answer you gave earlier was incomplete or you remembered something helpful, this is a good opportunity to literally set the record straight.
Apple vs. Samsung trial coverage
Cloud gaming patent arrives--after 8 years
Interview: Europe's new patent chief