Cases are rarely won at a deposition, but they can be lost at them.
That’s why it’s key to prepare your client for a deposition. You may need to set their expectations before fully getting them ready, breaking the news that depositions are nothing like The Good Wife or Law and Order, and definitely not as exciting as Ally McBeal.
Before I appeared in court for the first time, I had hundreds (yes, hundreds) of questions.
Which side of the courtroom do I sit on?
Should I look at the jury, the judge or the witness?
When do I stand or sit?
What if I need to use the bathroom in the middle of court?
Even today, I have a list of questions for every new experience. I need to know what to expect, down to the smallest detail. The same holds true for clients when it comes to their depositions: their testimony can mean the difference from going to trial or settling out of court.
Once you’ve gotten that out of the way, it’s time to give them the 10 Commandments of Depositions (Charlton Heston-esque movie gravitas optional).
Commandment One: Thou shalt tell the truth. You’re under oath. Be honest. If you realize you’ve been inaccurate or incomplete in one of your answers, say so. Say, “Excuse me, a minute ago you asked me how many times I requested my file. I said three. I may have misspoken. As I think about it more, it may have actually been four or five times.”
Commandment Two: Thou shalt listen and not interrupt. Don’t anticipate what the questioner is going to ask you, causing you to quit listening to the question. Listen from start to finish and don’t start to answer until the entire question has been asked. If you interrupt the questioner, you run the risk of not only incurring the wrath of the court reporter who’s attempting to take down everything you’re saying, but you also may provide damaging information that wasn’t otherwise going to come out. Though it may seem counter-intuitive, rest assured the more you talk, the more questions you’ll end up being asked.
Commandment Three: He who loses his cool loses in a deposition. You may feel frustrated at times with the questions you’re asked and/or the demeanor of the questioner. The worst thing to do is show your frustration or lose your concentration. If necessary, ask to take a short break to regroup. If you struggle to keep your composure, pretend your significant other, mother or preacher is in the room listening to your every word.
Commandment Four: Thou shalt remember you are the smartest one in the room. While it’s easy to feel intimidated because you’re new to being deposed, you’re still an expert on the subject matter. Forget about degrees and pedigrees. You’re the smartest person in the room regarding what’s being discussed. Otherwise, someone else would be answering the questions.
Commandment Five: Thou shalt be thyself and trust thyself. Testify in your own words based on your personal knowledge. Refuse to let opposing counsel manipulate you into doubting your recollection of events, and don’t let the questioner put words in your mouth or twist your words around. One tactic some attorneys use is to say, “Is it fair to say your recollection is…?” If he/she attempts to summarize parts of your testimony, don’t agree unless it is true in all respects. If not, don’t be afraid to state you don’t agree with his/her summary.
Commandment Six: Thou shalt be high maintenance. You have a right to ask for what you need during the deposition, whether that’s a break, question repeated or rephrased, document to refresh your memory, or more information before you can answer a question.
Commandment Seven: Thou shalt remember that “I don’t know,” “I don’t understand” and “I don’t recall” are valid responses. Put your ego aside and be willing to admit if you don’t know, don’t recall or don’t understand something. Often, the fault lies not with you but with the questioner. Don’t assume they know what they’re talking about. They often don’t.
Commandment Eight: Thou shalt not assume the best. Opposing attorneys may appear much friendlier in person than they do on television. This is one instance where you should trust what you saw on television. Don’t fall into the trap of assuming they’re your friend or have your best interest at heart. Treat them with the utmost respect, but don’t get tricked into believing they’re on your side and let your guard down.
Commandment Nine: Thou shalt forget your manners. This one is difficult to master, especially for those born and raised in the South. We all tend to dislike long pauses in conversation and have learned to fill those awkward pauses by talking. These pauses, though, are appropriate in depositions. In fact, it’s good to pause before answering a question to gather your thoughts. If the questioner pauses for a long time between asking questions, don’t feel the need to fill the silence. Take all the time you need to read any document you’re questioned about. If the attorney acts annoyed by the time you’re taking, take it as a compliment that you’re getting under their skin. It’s also proper to qualify your answer if needed, saying, “This is a 60-page, single-spaced document you just handed me. I’ve only had time to skim a few pages. If you want me to review it thoroughly, we’ll need to go off the record for at least an hour.”
Commandment Number 10: Thou shalt answer the question asked, and only the question asked. Generally, short, direct answers are best when the question calls for such an answer. If you need to offer an explanation, answer “yes” or “no” first (when it is a yes/no question) and then give any further explanation if needed, like, “Yes, except that…” Don’t help the opposing counsel by volunteering information that’s not called for by the question. For example, the proper answer to the question, “Do you know what time it is?” is either “Yes” or “No” — not 10 a.m. Don’t help them with their question either by saying, “Are you asking me…?”
If you stick to these thou shalts and shalt nots, you’ll slay your deposition experience.