Across the table: 10 tips for preparing for a deposition
I’ve been taking and defending more depositions than usual lately, and, naturally, I’ve been thinking a lot about the art of the deposition.
Because very few cases get to trial, the deposition is the event during which the key players have their opportunity to tell their stories. It is also often the key event in employment cases that decides whether a summary judgment motion is granted or whether a case results in a fair settlement.
A deposition may feel like a simple conversation between the parties in a lawsuit, but it isn’t. It is a tool used by a highly skilled practitioner to lock-in your side of the story, build his or her case through your admissions and evaluate you as a trial witness.
As there is a skill in taking a deposition, there is also a skill in testifying at a deposition. The following are my top 10 things to think about as you prepare to give testimony in a deposition.
1. Tell the truth. Enough said.
2. Answer the specific question asked. Do not volunteer other information. Do not explain your thought process. You are only required to answer the question that is asked. The lawyer on the other side is being paid to ask specific questions to elicit the specific information being sought. Do not do his job for him by unnecessarily offering other information.
3. Do not answer the question if you do not understand it. Simply say that you do not understand. It is the lawyer’s job to formulate understandable questions.
4. Do not guess. If you cannot remember something, your answer should simply be, “I do not remember.” If you have a vague memory, give that vague memory with a qualification.
5. Give an approximation if you are asked for a time or date and you cannot recall the specifics. That’s OK. Just qualify the answer by saying that it is an approximation or an estimate. A deposition isn’t a memory test.
6. Beware leading questions. An examiner is usually allowed to try to put words in your mouth with leading questions. Do not agree to inaccurate statements contained within the question. To that same end, do not automatically accept the questioner’s summary of your prior testimony, unless it is 100% accurate.
7. Give complete answers, and then stop. Always finish your answer. If you are interrupted, let the lawyer finish the next question, and then go back and finish your prior answer. If you are finished with an answer and it is complete, accurate and truthful, stop talking. Do not add to your answer because you feel a need to fill the silence.
8. Ask for documents. If you think you need a document to help you truthfully and accurately answer a question, ask for it. But, do not agree to supply any documents requested by the questioner. All such requests should go through your lawyer.
9. Understand objections. Even if your lawyer objects, you usually still have to answer the question. The only time not to answer is if your lawyer expressly instructs you not to (usually because the other lawyer is asking about attorney-client communications).
10. Humor doesn’t work. Sarcasm and humor do not translate well on the written page. Also, never express anger or argue with the questioner, or use even the mildest of off-color language. A deposition is a professional event, and you should act professionally.
I’ve never seen a perfect witness. A really good witness will be able to get more than half of these right when answering more than half of the questions.
Follow these tips to increase your chances of success.
The sworn testimony of a witness taken before trial held out of court with no judge present. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. When a person is unavailable to testify at trial, the deposition of that person may be used. Part of the pretrial discovery (fact-finding) process.
Beware these 2 ways to get tripped up
Beware these 2 ways to get tripped up
The attorney sitting across from you during a deposition is trying to find any opening that will help the employee win.
To minimize the chances of your words being used against you:
- Know your policies and procedures. Expect to get grilled on these. An attorney will pounce on any sign that you don’t know your own policies.
- Avoid inconsistent statements. You can bet the employee’s attorney will review all your statements—and then use any variations to impeach your credibility. Think before you speak: Is this another version of a question you’ve already answered?