If the thought of being confronted by an attorney while a court reporter hammers away at your every word scares you, you are not alone. If you are like most people, watching an episode of “Law and Order” is the closest you have come to being involved in a trial. Now you have been asked to give a deposition and it is understandable that you have apprehensions. We will look at deposition modus operandi, your do’s and do not’s, what to look out for, and tips for success. At the end of this blog, you should be able to perform well at your deposition.
You can probably think of a dozen better things to do than to spend a day being grilled by an attorney. But if you are thinking this is a good time for a game of hide and seek your wrong. Although no subpoena (a written order) is required, one can be issued if you do not appear at your deposition. If this happens, you will likely be charged the “you’ve been served” fees, attorney fees, and associated court costs. If a subpoena does not draw you out of hiding, you will be in contempt of court. In that case, a judge can slap you with anything from fines to jail time. Save yourself the grief; just do it.
A few days before your deposition your attorney will go over all the facts of the case with you. Prepare for this meeting by reviewing everything you have. Notes, calendars, journals, audio recordings, pictures, text, and email messages. If you have pleadings or other court documents read them. If you have questions or need clarifications write them down and remember to ask your attorney at this meeting. It is extremely important that you have everything about the case fresh in your mind at your deposition so take this meeting seriously. Show up and be prepared. Allow plenty of time for this meeting.
If the words “all rise” trigger a panic attack you will be relieved to know that depositions take place in attorney’s offices. Picture a comfortable conference room with a large table. You will be offered water or coffee or another refreshment. You will be allowed to ask for a break when you need one. People present will be your attorney(s), the other side’s attorney(s), a court reporter, and assistants. No judge will be present, but you will be placed under oath just like you would in a courtroom.
Attorneys are a tricky bunch. Watch for these stealthy ploys and ruses and beat them at their game:
Questions with underlying assumptions – listen for questions that are based on something you do not know, have not testified on, is based in hearsay (gossip), or you do not know to be accurate. You can call an attorney out on this in a respectful way by simply pointing out the underlying assumption and saying you have no knowledge of it, you do not know if it is true or false, it is wrong, or you do not agree with it. Do not take the bait and end up agreeing to something you did not mean to agree with.
Questions that contain more than one meaning– If a question can be interpreted in different ways be sure to ask for clarification. Do not get tricked into answering a different question than the one you thought you were answering.
Questions that contain multiple questions – If there are multiple questions to answer in a single question, ask the attorney to break the question down and ask each question separately. Do not let them get away with confusing or overwhelming you.
Questions of distance and time – Be careful when answering questions about distance and time. If you do not have exact measurements, do not try to guess a precise answer. It is okay to give an estimate but make sure everyone in the room (including the court reporter) understands you are giving an estimate, not an exact measurement. Each time you make an estimate say clearly, “I don’t know the exact measurement. This is just an estimation.”
Repeated Questions – Repeating the same question, even if in a different way, can shake your confidence. You may begin to doubt yourself if you feel your answer is not being accepted. If your original answer was correct, stick with it even when challenged. If you realize your first answer was incorrect you can correct the record, but do not allow an attorney to use repetitious questions to rattle your cage. If appropriate, you may simply repeat verbatim the answer you previously gave.
Off-the-record statements – Any time an attorney asks to say something “off the record” (not transcribed by the court reporter) pay close attention. It is not always clear or obvious when “off the record” ends and “on the record” begins. Do not answer questions or make statements about things that do not get recorded.
Attempts to upset or intimidate you – If you let opposing counsel rattle your cage you may divulge information you should not. Maintain your composure. If it helps, ask for a break. This will help you stay in control and interrupt their momentum. Do not let opposing counsel unnerve you by asking whether you are willing to “swear” to what you say. If you have knowledge of something do not be afraid to tell it; you were “sworn” to tell the truth when you began.
Do be honest. Answer all questions as truthfully and fully as you can without volunteering information that was not asked for (I am looking at you ramblers). In other words, it is easier to keep the truth than to keep a lie. When you lie you initiate a cascade of problems that usually lead to more lying and more problems. Attorneys have their ears tuned to falsehoods and discrepancies so keep your oath to tell the truth, the whole truth, and nothing but the truth. Remember that nothing you say can be any more damning than being caught in a lie. A lie can lose a case.
Do listen, hear, and understand. Wait for the question to be fully asked before answering. If you did not hear it all ask for it to be repeated. If it is complicated ask for it to be re-phrased. If it is complex, ask for it to be broken down. If you do not understand a word, just say so. No one is going to judge you for wanting to answer the right question with the right answer. If you do not know, say, “I don’t know.” If you do not remember, say, “I don’t remember.” These are perfectly acceptable answers if they are truthful.
Do trust your attorney. If a question feels irrelevant or weird answer it anyway unless directed not to by your attorney. Your attorney will object to any questionable questions and the judge will later rule whether your answer will be kept on record or removed. Furthermore, do not burden yourself with trying to figure out if your answer will help or hurt the case. That is your attorney’s job. Just answer as accurately and truthfully as you can and trust your attorney to do the rest.
Do correct your mistakes as soon as you realize them. At any point in the deposition, you may ask to correct your testimony if you realize it was in error. If you know something, you said was not accurate do not keep that to yourself out of embarrassment or fear. You are allowed to make mistakes. The only real mistake is not correcting yourself.
Do ask for a break when you need one. Depositions can take hours, days, even weeks depending on the case. If you get tired say so and ask for a break. If you must use the bathroom, ask for a break. Feel free to request a beverage or whatever you need. Bring healthy snacks to eat on breaks to keep you going. If you need a smoke break or to make an important phone call let the attorneys know so you can be accommodated. Most importantly, if you feel yourself getting stressed, angry, or emotional in any way that might interfere with you thinking clearly, listening attentively, and staying in control, please ask for a break and do what you need to do to stay in a healthy place.
Do not fear silence. After listening intently to the full question take some time to run through the tricks of the trade mentioned above and decide if you want to point out or disagree with an assumption, have something repeated, explained or broken down, etc. Then carefully think through your answer. Is it true? Is it accurate? Does it contain information not asked for? Give each question the thought it requires. It is okay if the room falls silent while you think. Silence is nothing to be afraid of. Take all the time you need to formulate your answer. Follow the ancient Arabic proverb: “speech is silver, silence is golden.”
Do not guess. Let your “yes” be “yes” and your “no” be “no.” If you do not know, say so.
Do not volunteer information. Answer only what is asked. Some people tend to ramble when they are nervous. If this is you be aware of this tendency and devise ways to control your impulse to keep talking.
Do not exaggerate. Save your fish stories for another audience.
Do not elaborate on your answers or explain them unless specifically asked to. If an opposing attorney wants you to elaborate or explain something you said wait for them to ask. If your attorney wants you to, they will ask you to do so when it is their turn.
Do not frustrate the stenographer. The court reporter must hear your answer to record it. Do not nod or shake your head, say “uh-huh or “mmhmm.” Answer all questions audibly. If you point to something or use some other motion of indication, try to use words also.
Do not look to your attorney to coach you in an answer. It is expected that your answers be yours and yours alone. This does not mean you and your attorney can not plan out beforehand how you will answer questions. In fact, you should. That is called preparation. But once you are sworn in, do not look to your attorney for any prompts, signals, or cues. Opposing counsel might ask you if you have talked to your attorney about the case. Of course, you have. Admit it by simply replying, “yes.” If the attorney wants to know what you were told, stick with “my attorney told me to tell the truth.”
Do not produce documents. Unless your attorney says otherwise, do not bring or introduce any documents during your deposition. There are other procedures for producing documents. If you are shown documents, read them carefully. Pay attention to dates, names and signatures, addresses, etc.
Do not sign anything. Unless your attorney says otherwise, do not sign any authorizations for medical or employment documents or anything else.
Do not drop your guard. Maintain a disposition of seriousness and do not make jokes, chat with opposing attorneys, or get casual. Doing so may risk you dropping your guard and talking more freely than you should. Be courteous and respectful but do not treat your deposition as a social occasion.
Do not argue or attempt to outwit counsel. Opposing counsel has the right to question you. Do not be evasive, sarcastic, or uncooperative.
Do not corner yourself. “Always,” “all,” “never,” and “ever” are sinful words. If you use them the law god will punish you. Instead, say, “that’s all I can recall at this time.” You may remember something important after another question is asked and you do not want to give the impression you were withholding something.
Do not answer if you attorney makes an objection, unless advised to do so. Sometimes an objection will be made for the record, your attorney will direct you to go ahead and answer, and a judge will rule on it later.
Do not waive your right to review the transcript of your testimony. If after reviewing, you decide something needs to be changed it can be but be prepared to give a reasonable basis for why the change is necessary.
After reading this you are likely a little less excited. Hopefully, this information has demystified the process of giving a deposition and you know what to expect. Review your material, get a good night’s rest, and follow the above tips and you will do fine.