You’re going to be deposed. Now what?
As any good lawyer will tell you, you can’t win a case in a deposition, but you can certainly lose one.
As such, it is important to exercise great care in preparing for a deposition and to treat the deposition as you would any other job – in a diligent and workmanlike manner. Here are five tips for handling yourself during a deposition.
Listen to the Question
If you were to walk up to someone on the street and ask “Do you have a watch?,” most people will respond, “Good morning, why yes I do, it’s 8:30.” Wrong answer. In a deposition, the correct answer is “yes.” It is commonplace in our society for people interacting with each other, during the course of dialogue, to engage in a back and forth. How are you? How is your day going? Those types of questions can elicit broad and expounding responses and encourage further discussion between the parties. Not so in a deposition. That back-and-forth habit common in natural conversation must be broken in a deposition context. Your job as the deponent in a deposition is to simply answer the specific questions asked of you. No more, no less.
Do Not Volunteer Information
Question: “Do you have a watch?”
Answer: “Why yes, I do, this watch right here was given to me by my great grandfather when he fought in World War II. It has been passed down from generation to generation and still works to this day. You know, even with all these fancy modern electronics, they still don’t make things like they used to . . .”
Wrong answer in a deposition.
Beyond listening to the question, deponents should not volunteer information. Why? Because no matter how seemingly innocuous a statement may seem to be, as they say in the law, anything
you say can and will be used against you in a court of law. One never knows what may become important later as further facts and issues are revealed. Thus, while one should never conceal or hide information, one need not volunteer information not asked.
Take Your Time
During the course of a deposition, there should be an interval of time between the asking of a question and the giving of the answer. This too may seem awkward and unnatural. Typically, in day-to-day conversations, there is a back and forth with causal interruptions from time to time between the parties. This too is a habit that must be broken for purposes of a deposition. Instead, you should count in your head to three Mississippi before answering the question. Were one to do that in everyday conversations with others, it would be odd and out of place. But in a deposition, it is not only common but appropriate. Why? Two reasons. First, by pausing, you can carefully consider the specific question asked, and more importantly, formulate your response prior to answering. This gives you time to think before you speak. And second, by pausing, you allow sufficient time for your lawyer to interpose an objection as the case may be. Under the law, if a deponent answers a question before an objection is made, then the objection is waived. Therefore, a time gap is important to allow proper objections to be made to the question before answers are given.
Do Not Speculate
Your role as a deponent is to provide your direct, firsthand knowledge of the facts. “I saw … I heard … I noticed … X, Y, or Z. Your role as a deponent is not to speculate as to what may have occurred or what someone else may have seen or done. Thus, it’s never a good idea to find yourself saying things like: “I guess, I think, Probably, It might have, or It could have.” Why? Because those statements are not based upon your own, direct knowledge. You must know whether or not something occurred, not whether it could have or should have occurred. Thus, if you have no direct knowledge of a particular event or occurrence, then an appropriate response would be “I don’t know” or “I don’t recall at this time.” In sum, do not assume, guess, or speculate during a deposition.
Tell the Truth
The single most important tip is to always, no matter what, tell the truth. A deposition, while generally held in an informal setting, like an office space or conference room, nonetheless holds the same force and effect as a court of law – subject to the penalty of perjury. Thus, not only could one subject oneself to criminal perjury charges but as any good lawyer will tell you – catching someone in a lie is the easiest way to destroy a case. Even the most meritorious of cases, can be brought down by false testimony. All of a sudden, the issue is not whether someone did the work, was or was not paid, but rather, why did they lie about this issue? The witness’s credibility is all but destroyed and now, a surefire slam dunk case goes off the rails. Every case has good facts and bad facts, but lying about bad facts will not help the cause.
In conclusion, listen to the question, take your time, do not speculate, and above all else, tell the truth. If you do these things, you will be well on your way to a successful deposition.
For more information on this please contact Senior Counsel Mac W. Cabal, [email protected].
The information contained in this Newsletter has been prepared by Lanak & Hanna, P.C. for educational and informational purposes only. It does not constitute legal advice, nor does it substitute for legal advice.
Pursu Agency