OK To Say ‘I Don’t
Know’
Why Did You Testify About
A Gorilla In Your Office?
by Steven John Fellman
NATO Washington Counsel
Sooner or later, every
corporate executive is going to be involved in litigation
and will be required
to give
a deposition. Prior to the deposition, the executive’s
attorney will explain the procedure that will be followed
at the deposition. The executive will be told to tell the
truth and to answer questions by stating “Yes,” “No” or “I
don’t know.” Over the years, it has been my
experience that a substantial number of corporate executives
do not follow their attorney’s advice and often testify
as to matters to which they really have no knowledge. The
end result is that the litigation is lengthened and the
result of the deposition is to confuse rather than simplify
the issues involved.
As
a fact witness in a deposition you should testify
only to those things that you know. Either you know
something or you don’t know something. |
Let’s look at an example. Assume that you are called
to give a deposition as a “fact” witness in
a case. Your company is not a party to the litigation.
However, your company has done business with the defendant
and the plaintiff believes that you may know certain facts
that would be helpful. The plaintiff is a movie theatre
patron claiming that he became ill after eating popcorn
purchased at the movie theatre. He claims that he became
sick because the popcorn was popped in rancid oil. You
are being called as a witness because the defendant theatre
company’s oil supplier listed your company as another
purchaser of its popcorn oil. Although you are responsible
for purchasing the popcorn oil used by your chain, you
are certainly not a toxicologist or a chemist. You go to
a deposition and you are sworn to tell the truth. Here
is how two different witnesses with the same basic knowledge
might answer a series of questions.
Witness One: He who “guesses.”
Question 1: Are you familiar with popcorn oil sold by the
ABC Company?
Answer 1: Yes.
Question 2: Are you aware that popcorn oil may become rancid?
Answer 2: I don’t know, but I guess it could become
rancid.
Question 3: Is it possible that any oil that you purchased
from ABC could have become rancid?
Answer 3: I don’t recall ever having seen rancid
oil, but I guess it is possible.
Question 4: So it is your testimony that you understand
that popcorn oil could become rancid and that it is possible
that ABC once sold you rancid popcorn oil?
Answer 4: Yes, it’s possible.
In looking at the same set of questions, Witness Two answered
as follows:
Question 1: Are you familiar with popcorn oil sold by the
ABC Company?
Answer 1: Yes.
Question 2: Are you aware that popcorn oil may become rancid?
Answer 2: I don’t know.
Question 3: Is it possible that any oil that you purchased
from ABC could have become rancid?
Answer 3: I don’t know. I have never seen any rancid
oil from ABC.
Question 4: So is it your testimony that you understand
that popcorn oil could become rancid or that it is possible
that ABC once sold you rancid popcorn oil?
Answer 4: That is not my testimony. My testimony is that
I don’t know if popcorn oil could become rancid and
I have never seen rancid popcorn oil from ABC.
At the end of the discovery period,
the defendant files a motion for summary judgment. The
defendant is entitled
to summary judgment if, when all the facts are viewed favorably
to the plaintiff, the evidence does not support a cause
of action against the defendant. In this case, the defendant
would like to argue to the court that the plaintiff has
shown no facts during the discovery process that would
lead to a conclusion that ABC Company provided rancid oil
to the plaintiff. In response to the Motion for Summary
Judgment, plaintiff’s counsel pulls out your deposition.
Plaintiff’s counsel argues that in your deposition
you stated that it was possible that your company was provided
with rancid oil by the defendant and based on that testimony,
it is certainly possible that the same rancid oil was supplied
to the defendant.
You look over your deposition and
you point out that you were just trying to be helpful.
The question that you were
asked was whether or not something was “possible” and
in reality almost anything is “possible.”
However, as a fact witness in a deposition you should
testify only to those things that you know. Either you
know something
or you don’t know something. If you don’t
know, your testimony should be “I don’t know.” This
gets us back to the title of this article. Is it possible
that a gorilla could walk into your office within the
next 10 minutes? If you answered “Yes,” please
read this article again. If you answer, “I don’t
know,” you are well on your way to being a good
witness at your next deposition. 
