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 Are You Ready For Your Deposition?
I once had the unfortunate experience of discussing business
with a potential client who mistook me for a different lawyer who had sued her
company years earlier. “You wouldn’t even let me go to the bathroom during
my deposition,” she informed me, with a bitterness that hadn’t faded with
time. I learned two things that day. First, despite my protestations
that it wasn’t me, I wasn’t going to be doing any work for that company.
Second, witnesses remember vividly their negative experiences with depositions. A deposition may be littered with landmines from which you
have little immediate protection other than your own preparation and common
sense. Sometimes it’s intrusive and confrontational. Other times it may seem
friendly and unthreatening, when in fact you are being subtly probed for
damaging information. Either way, you should never go into a deposition without
understanding the process and the risks – and how the risks can be managed. The What and Why of Depositions The discovery period of litigation is about gathering
information. In addition to requesting a wide variety of documents, the opposing
counsel will, depending on limits set by the court, conduct depositions of
people who were involved in various aspects of the disputed issue. For example,
in a patent dispute, counsel may take depositions from the inventor, engineers,
marketing executives, CEO, etc. Even if you believe your role in the dispute was
limited at best, you may find yourself being deposed. The deposition itself is basically an on-the-record Q & A.
The witness attends, as do attorneys from both sides and a court reporter to
make a transcript, either written, video, or both. The witness is placed under
oath, and the opposing counsel then asks a series of questions. While counsel
for your side can make objections for the record, he or she usually can’t
protect you from answering a given question, unless attorney-client privilege is
involved. As a result, opposing counsel has considerable latitude to interrogate
you, trick you, confuse you, make you uncomfortable, ask you questions you
don’t want to answer, lull you into a state of overconfidence, delve into your
personal and professional life, and try to get you to lose your cool and answer
without thinking. What purpose do depositions serve? On one level, a deposition
is simply a means of gathering information. The facts that you and others
provide may be used to prepare or oppose a motion to have the case dismissed, or
to bolster the evidence that will be used at trial. But there are other, more
subtle motives behind many depositions, including: Going fishing. Counsel may try to draw out information
that will point to new theories of the case, or that will lead to important
documents or other witnesses they may not yet have discovered. Often, they may
simply be fishing for clues, without knowing what they’ll find. It’s easy
for witnesses who don’t understand legal nuances to volunteer seemingly
innocent or irrelevant information that opens up whole new avenues of
investigation for opposing counsel. Locking in your story. Opposing counsel will try to get
you to commit to a certain set of facts. Months later, when you’re on the
witness stand in court, you may find your words thrown back at you in a most
uncomfortable way. Depositions are not friendly or informal conversations,
regardless of what the questioning attorney tells you. A shrewd lawyer may try
to charm a witness, or encourage him or her to chat casually with pleasant,
open-ended questions. Don’t be fooled. Be Prepared There are several basic steps involved in preparing for a
deposition. Even for witnesses who have been through depositions before, there
is no substitute for thinking through the issues involved in each specific
deposition in advance. 1. Tell the truth. You can do irreparable damage
to your reputation and your company, and lay yourself open to possible civil and
criminal penalties, if you lie during a deposition. So don’t do it. Plan to
answer each question honestly. 2. Meet with your attorney early. Ask plenty of
questions. Be sure you understand the litigation, the deposition, your role and
your importance to the case, and administrative details like how to handle
documents and how the deposition will work. If you have personal conflicts that
may interfere with the deposition (illness, medication, child care, etc.), talk
with your attorney about them in advance. 3. Don’t talk to others. Talking creates
evidence that you may not intend to create. Don’t ask other witnesses about
their depositions, and don’t answer questions about yours. You’ll likely be
asked during the deposition whether you’ve talked with anyone else about the
deposition, and if you did, anything that you said or someone else said becomes
fair game. The only person you should talk to about your deposition is your
attorney. 4. Practice your witness skills. Have your
attorney run you through drills of sample questions and critique your
performance. Practice listening to each question, thinking about and analyzing
your answer, and delivering it appropriately. Don’t assume that answering
deposition questions is easy. You’ll be facing a skilled interrogator, perhaps
for a long deposition. At the Deposition The questions you confront at a deposition will run the gamut
from predictable and fact-based to unexpected and hypothetical. You’ll likely
face many investigative questions: who, what, when, where, why, was it written
down? You’ll be asked to read, interpret, explain, and comment on documents
that you may have written or received. Your memory and judgment will be tested,
and your attention span and temper may be stretched thin. The style of the attorney handling the questions is also
likely to vary. Some lawyers will adopt a friendly manner as a tool to encourage
you to say more than you otherwise would. Others may adopt an argumentative or
impatient posture to intimidate or goad you into ill-considered responses. Your
best move is simple: be prepared. Your own lawyer’s role during the process is limited. He or
she may make objections that will later result in the question being tossed out
– but not before you have to answer (unless the response would violate
attorney-client privilege). Your lawyer may also cross-examine you to help bring
out additional relevant information that the opposing attorney may not pursue.
But in general, your attorney’s most important role is before the
deposition, by helping you prepare. Once you start answering questions, you’re
largely on your own. When responding to questions in a deposition, keep the
following principles in mind: Common Mistakes It’s easy to make mistakes during a deposition. Obviously,
the first mistake is being dishonest. But even truthful witnesses sometimes get
into trouble. There are three types of witnesses who particularly give their
attorneys and their companies fits. Not surprisingly, opposing counsel love
them. Chatty witnesses. The chatterer likes to talk. Rather
than answering the question and stopping, this kind of witness feels the urge to
go on and on, adding colorful details and personal observations or reflections.
Opposing counsel love chatterers, because they often provide “juicy” details
that can open up new areas of discovery or can carry damaging emotional weight
when laid before a jury. Clever witnesses. A witness who thinks he’s smarter
than the opposing lawyer – or who doesn’t want to appear stupid by asking
for clarification – may provide an answer without really understanding the
question. Or they may provide an answer that is factually “accurate” but is
deliberately evasive or nonresponsive (remember what the meaning of “is”
is). Some clever witnesses, when faced with a choice between admitting ignorance
or guilt, choose the latter option, with predictably bad results. Opposing
counsel love clever witnesses, because they’re easy to trip up in court later. Helpful witnesses. Like chatterers, helpful witnesses
provide more information than is necessary. They feel compelled to fill in the
gaps, to explain, to justify. They sometimes try to “help” themselves or
their company by saying what they assume will be the “right” answer, even if
they don’t have personal knowledge of the truth. Opposing counsel love helpful
witnesses, because they often help the other side find contradictions between
testimony and fact. Preparing for and participating in a deposition takes time,
thought, and care – all of which may be severe challenges for executives and
others who must deal with depositions on top of their ongoing business
responsibilities. But the art of mastering depositions still boils down to
simple advice: think before you speak, tell the truth, and answer only what’s
asked. If you follow this advice, you’ll be less likely to help your opponents
or find your own words used against you in court. |
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