A deposition is taken with a court reporter to transcribe testimony prior to trial. This is a normal part of most family law, personal injury, and other civil cases, so there is no need to be alarmed when your attorney tells you that the other side wishes to take your deposition.
You will be under oath and required to tell the truth. Of course, the other side will attempt to crystallize your testimony and discredit you. This is also normal – your attorney will probably try to do the same to the opposing party at their deposition. Fortunately, your goal is much more simple. Do not worry about winning your case or persuading the opposing lawyer. Instead, your goal is simply to answer questions truthfully. That’s it.
Now that you know what a deposition is, what the other side will try to do, and what is expected of you, here are ten tips to help you prepare for your deposition.
1. Review Important Filings & Evidence
In order to do well at your deposition, you must be aware of the facts of your case, what your attorney fears may be weaknesses with your case, and the main points your attorney wants to get across to the judge or jury at trial. The first thing you should review is the Complaint filed in your case. This was the first pleading filed with the court in the matter, and sets forth the pertinent facts that form the basis of your claim. It is imperative to be familiar with the times, dates and places of events, as outlined in the Complaint.
Afterwards, review your answers to interrogatories. You do not want to say something at your deposition that contradicts the answers you have already given under oath in your interrogatory answers. Along these lines, you do not want to contradict any hard evidence. Ask your attorney which documents or recordings are likely to come up during your testimony.
2. Dress Appropriately
Most depositions are not video recorded, but even then it is still important to dress appropriately. This is because scientific studies have shown that how you dress can subconsciously influence your performance. We recommend business attire that you feel comfortable wearing. Business casual is sufficient.
3. Do Not Bring Anything Unless Otherwise Instructed By Your Attorney
During your review of filings and evidence, you may have come across some documents or other evidence that you inadvertently forgot to provide to your counsel. If so, contact your attorney, discuss the material and ask whether you should bring the material to the deposition. Do not bring any documents or other tangible evidence to the deposition unless expressly told to do so by your lawyer.
I once had a case several years ago where my client showed up to their deposition with a whole stack of documents I had never seen (despite repeated requests for everything in their possession related to the case). The client waited until being sworn in, in front of myself, opposing counsel and the court reporter, before just throwing the documents on the table and saying, “I found these last night and didn’t know what to do with them.”
It was too late at that point to stop the deposition, review the material and make any appropriate redactions, since everything was then a part of the record. It was a big case with a lot at stake and I nearly had a heart attack.
Fortunately, the documents did not contain any salient information. The deposition went well, and we ultimately won the case. But, it could have gone horribly wrong. So again, do not bring anything to your deposition unless told to do so by your attorney.
4. Be Early
Try to arrive 15-30 minutes early. Your lawyer probably did one last review of your case material the night before or morning of the deposition. This is sometimes when we may have an epiphany that we need to discuss with you before testifying. Or, we may simply want to go over the key facts or other aspects of your testimony one last time before you are placed under oath.
5. Tell the Truth, the Whole Truth, and Nothing But the Truth
Relax, breathe, and remember that your only goal at this point is to tell the truth. If you reviewed the pertinent information prior to the deposition as suggested above, then enjoy the comfort of knowing you are prepared.
You are not expected to be perfect. And, this is not the part of the litigation where you have to win your case. Your only goal here is to tell the truth. You will basically be answering questions to which you already know the answers. Having said that, there are a few things to keep in mind, which we mention below.
6. Understand the Question Before Answering
In order to tell the truth, you need to understand the question. Listen carefully to each question. Once you answer, you will be presumed to have understood the question, and will be held to your answer.
If you do not understand the question, or if you believe the question could mean a variety of things, ask for clarification by stating, “I’m sorry, I don’t understand the question. Would you please clarify what you mean by [fill in the blank]?”
Along these lines, be alert for any questions that contain a summary of information. These are questions that sound like, “So, what you’re saying is X, Y, and Z, right?” Before you answer, make sure that the summary is correct.
If there is any inaccuracy with the lawyer’s characterization of X, Y, or Z, do not answer the question. Instead, simply state the problem with the lawyer’s summary: “I’m sorry, sir, but I never said that my spouse just picked up the kids from school. I said that my spouse violated a court order preventing any contact with the children, and then left the state, essentially kidnapping them. But yes, everything else you said was accurate.”
7. Be Precise
Answer only the specific question you are asked. If you can answer honestly and accurately with a simple “yes” or “no,” then do so. For example, if you are asked, “Do you have a watch,” answer, “Yes.” Do not elaborate further by saying, “Yes, its 2:00,” as the question only asked if you had a watch, not the time.
If there is some grey area and a simple “yes” or “no” would be misleading, then provide a brief explanation. Try not to ramble. Sometimes lawyers will play this little game where, after you answer, they will look at you, silently. This usually prompts people to feel a need to continue talking, at which point they just start saying whatever is on their mind. Do not fall into this trap. Once you answer the question, confidently remain silent until the next question is asked.
Keep in mind that your lawyer is present. So, if you forget to say anything important, your attorney will have an opportunity to ask you questions to put this information on the record later in the deposition.
8. Do Not Guess
If the only way you could answer would be by giving a guess, state, “I don’t know.” If you do know, but just cannot remember, state, “I don’t recall.” If you need to see a document to refresh your recollection, then feel free to say so.
But, whatever you do, do not start guessing or saying anything that begins with, “Well, I suppose ….” Remember, your deposition is not a test. You are not expected to have a perfect memory. You are only required to tell the truth.
9. Ask for a Break
While a deposition may feel like a hostile interrogation at times, keep in mind you are not a war prisoner. If you need a break, ask for one. If you feel yourself falling apart or becoming angry, ask for a break. If you are mentally spacing-out, ask for a break and take a few minutes to recharge.
Similarly, the goal of the deposition is not to starve you to death. If a couple hours have gone by and you are hungry, ask for a lunch break. I have attended countless depositions over the last fifteen years, and have never once seen an attorney refuse a request for a lunch break. In fact, I have never seen an attorney refuse a request for any break. And, frankly, if they had tried to do so, I would have readily stepped in and shut down such nonsense.
There is one caveat here. Under Maryland Discovery Guideline 9(i), you cannot discuss your testimony with your lawyer during the break. You are only permitted to discuss whether there are grounds to assert a privilege. In fact, these discussions may not even enjoy the protection of the attorney-client privilege, as some courts have ruled that such discussions are discoverable. See Hall v. Clifton Precision, a Div. of Litton Systems, Inc., 150 F.R.D. 525 (1993).
10. Don’t Feed the Shark
No matter how much the opposing lawyer gets under your skin, do not argue with them. It will never end well. The attorney on the other side is not out to do justice by you. They are there as a hired gun to impeach your credibility or find other ways to derail your case. If you argue with them or try to outsmart them, it will backfire.
For the attorney, your deposition is somewhat similar to a game of chess. The lawyer has already mapped out a line of questioning designed to lead to a point they want to make at trial. In other words, while you are focused on the question at hand, the opposing attorney is aware of a point they want to lead you to ten or more questions later, similar to the way in which a chess player might see the board ten moves ahead. They are probably prepared for multiple ways you might answer a given question, and have mental maps of how to use any answer you give to lead to the point they want to make later in the case.
Imagine a child custody case where the other side is trying to prove that you are not a fit parent. They are focusing on a day when you were responsible for the child, and the three-year-old developed a bruise. The lawyer asks a simple question, whether you know how the child got the bruise. If you answer yes, the lawyer will start asking why you did not take steps to prevent whatever caused the bruise. If you answer no, the lawyer will start asking why you were not watching the kid. So, in either case, the lawyer has a plan to try to make you look bad. Your lawyer of course will argue that whatever happened was just a normal part of parenting.
But, if you start arguing with the lawyer, it will only get worse. Suppose you argue, “Well how am I supposed to cook and watch my son at the same time?” The lawyer might say, “So, whenever you start cooking, the child isn’t safe?” Then you are caught off guard, you start to feel stress, and then you start saying whatever comes to mind. The lawyer smells blood in the water and just runs with it:
Witness: He’s fine, this is the first time it’s ever happened.
Lawyer: Well what assurance can you offer that it won’t happen again?
Witness: I don’t know. I just won’t cook when I have him.
Lawyer: So then how is the child supposed to eat?
Witness: I have crackers and other snacks.
Lawyer: Oh, so nothing healthy?
Witness: Look, I’ll just cook before he comes over.
Lawyer: So he’ll never have a warm meal under your care?
Witness: I can have a family member come over to watch him while I cook, okay?
Lawyer: So you’re not competent and fit to watch a three-year-old child on your own?
Basically, if you have ever seen a good comic doing improv, realize that lawyers are trained to do the same type of improv only with facts and logic rather than punchlines. In the same way you would not want to trade insults with a comic, do not argue with the opposing lawyer at your deposition. Just answer the questions briefly and honestly as outlined in Tips 5-8.
If you follow the above Ten Tips, then you will survive your deposition. Even if some of your testimony is not helpful to your case, adhering to the above strategy should minimize the damage and make your attorney’s job of cleaning up any mess easier.
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