If it’s your first time being deposed, you probably have a few questions about what to expect.
The deposition is an important tool in the early stages of litigation (pre-trial) to gather information and testimony from a party or witness in the case. The information that is gathered can be used to build a case for trial and the testimony itself can be used during the actual trial to refresh a witness’s memory or in the worst case scenario to highlight inconsistencies in his/her story (testimony). In other words, what you say at your deposition is setting the foundation for the trial.
The deposition itself will likely take place at a law firm or some neutral location. All of the questions will be answered under oath and be recorded by a court reporter who will create a written transcript of all the questions and answers during the deposition.
1. Practice, Practice, Practice
In most cases your attorney will ask to meet with you prior to your deposition. He/she should give you a quick overview of how the deposition should play out. More importantly, your attorney should run through a few of the likely questions that you will be asked by the opposing attorney. While the actual deposition may ultimately feel less friendly, it’s good practice to run through a practice deposition especially if it’s your first time being deposed. This will help prepare you for a certain line of questioning that might otherwise catch you off guard.
2. Keep it Short
You’re going to be a little nervous in there. That’s to be expected. Most of us tend to ramble when we’re nervous about answering a question. Resist the temptation to ramble and keep your answers short and within the scope of your knowledge. You don’t need to add conjecture or give background details.
Question: “Mr. Johnson, did you draft an email to Ms. Johnson at 2:45PM on March 14th, 1994?”
Answer: “I don’t recall.”
3. You Know What You Know!
Okay. This is really important. The opposing attorney is going to do his/her best to make you feel foolish for not being able to answer a question. No matter how nice they are to you or how disappointed they sound by your inability to recall details from 15 years ago, don’t give into the pressure. Always keeps answers within the scope of your knowledge. For example, if they ask you about correspondence that you received several months ago, you can answer by simply stating: I would need to review the correspondence. It’s the opposing attorney’s job to pressure you into answering questions that are beyond the scope of your knowledge. If you keep that in mind then you won’t allow yourself to be pressured into answering a question that you are not in a good position to answer.
4. Can you please repeat the question?
During the course of the deposition you may be asked very complicated questions or a question surrounded by commentary that makes the question difficult to understand. You’re not a mind reader and you don’t get any extra stars for correctly interpreting a question. Again, it’s the opposing attorney’s job to pressure you into answering difficult questions. So, it’s very likely they will try to confuse you into answering a question in a way that is beneficial to them. You need to know exactly what you are being asked. Ask them to repeat the question. Ask them to rephrase the question. But don’t answer the question until you know exactly what is being asked.
Unlike in your favorite court room drama, when your attorney yells objection, you will almost always have to answer the question. In Law & Order when there is an objection, the judge decides right then and there if it’s okay for the witness to respond (overruled/sustained). Because there is no judge in your deposition, whether or not the question and the answer are allowed (admissible) will need to be decided at a later time. So, when your attorney yells “Objection” it’s really so that the court reporter can include it in the transcript. You should simply pause for a moment, then proceed to answer the question to the best of your ability.
It’s a good habit to pause before you answer a question during a deposition. One method used by attorneys to draw you into answering questions that are beyond the scope of your knowledge is to ask you a series of rapid-fire questions that are easy to answer followed by one that is more complicated. The idea here is that if they can get you into answering quickly, you will be more likely to answer without thinking. That is why it’s a good custom to pause before answering every question. You should control the pace of the deposition, not the attorney.
7. Killed by Kindness
The opposing attorney may spend the first few minutes of the deposition trying to make you feel comfortable. It is in his/her best interest to do so as they want you to feel comfortable answering all the questions they ask. All too often this leads to trouble. One trick used by attorney is to fill a question with compliments.
“Mr. Enriquez, as a self made man and CEO of a powerful company, do you take it upon yourself to be familiar with all of the inner-workings of your company on a daily basis?”
The real question here is asking you if you are aware of ALL the inner workings of your company on a daily basis. The answer is likely that it would be impossible for you to run a giant company and know all of its inner-workings on daily basis but the leading compliment pressures you into indulging into an exaggerated answer. Be careful and don’t be killed by kindness!
8. Wait a Minute
While it is not proper for your attorney to coach you through answering questions, it is appropriate for you to request a moment to confer with your legal counsel at any time during the deposition. It’s also perfectly fine for you to ask for a break. The opposing attorney is going to try to wear you down with questions. If you are starting to get tired, ask for a break. Have a glass of water. Take a walk around. You’re in charge of the deposition and you can take as many breaks as you need (within reason, of course).