SURVIVING A DEPOSITION
The legal system used to be very similar to a gunfight in an old movie. The lawyers would show up, a trial would start and the dust would settle. That way of handling legal matters is a long time gone.
What happens now is that both sides seek to prepare for trial by finding out everything they can. The process of finding out everything the other side knows is called "Discovery" (as in discovering what the other side knows, has, or thinks it knows). There are three reasons to conduct discovery and explore the other side's knowledge and position.
First, by taking a look at what the other side has you can avoid ambush and will be ready for whatever comes. That is the reason the law allows for discovery. The other side will always claim that is why they are doing their best to conduct discovery on you.
Second, by conducting discovery, both sides get a more accurate picture of the real facts and what the judge and jury are likely to be shown. The clearer knowledge is, the easier it is to know what will happen, and the easier it is to settle a case as a purely economic decision (or for what passes for a fair settlement in a market economy). This is an excellent reason to conduct discovery.
Third, discovery can be used to set traps and run up the costs for the other side. The Tobacco Industry has been accused of doing this. Many lawyers who are defending cases (or pursuing them) intend to make the struggle as expensive and painful as possible for the other side, turning law suits into a modern version of trial by combat.
This almost always works the first time someone does it. But, as time goes on, it gets more and more expensive with less and less to show for it. It does make a lot of money for attorneys. It is not a reason for conducting discovery in your case.
II. What a Deposition Is
Most people have seen a trial on a television show where the attorneys go back and forth asking witnesses questions before a judge and jury.
A deposition is the same thing, without the judge, the jury, or as much excitement -- and it is not over in an hour like a television show.
In a deposition a witness (you) is put under oath and attorneys ask them questions while a stenographer (a court reporter) types down every word said using a shorthand machine. This is printed out into a book that may be used at trial as evidence and that has many other uses.
Depositions may be short (only several hours) to days (or weeks). Because 90% of all cases are resolved before trial, for all intents and purposes, the deposition may be all the trial you get. Most depositions are only a couple of hours or so.
A deposition can be expensive and it is an important action that combines preparation, tactics, and misdirection. A good deposition can sometimes end a lawsuit. A bad deposition can create a lawsuit where it wasn't before.
III. Who Is At A Deposition
There are several people who may be at a deposition.
The attorneys for the parties (that is, a lawyer for the people suing and a lawyer for the people being sued) always attend. There may also perhaps be a personal attorney (if insurance or some other group has provided an official attorney) or attorney for the witness (sometimes the person being sued). There is always a court reporter, and there may be a video camera operator. The real people involved in the law suit (the parties or the people suing and being sued) may also attend. Insurance adjusters and family members (who are financing the law suit) sometimes attend. Extra attorneys may sometimes be found at depositions.
A deposition may just have a court reporter and a witness. It may have well over fifty people present. In most medical health care cases at least one of the people suing will attend. They will usually have one or two attorneys representing them to ask questions. The health care provider being sued will have an attorney (who will usually bring along a younger associate attorney) and may have his own personal attorney present. The insurance adjuster may also attend, just to look everyone over. If more than one health care provider is sued, each of their attorneys will be present, usually with an associate.
That same multiplication of people at a deposition can often happen if there are multiple parties in a law suit.
Finally, there may be people there for moral support -- from providing coffee to friends and family. Often extras are a very bad idea. In some cases, the law forbids them.
It is important to remember that the witness has to attend. If they do not attend, they can be thrown in jail. If they are the person suing someone, the law suit can be thrown out and financial sanctions charged against them. If the witness who does not come is the defendant (the person being sued), they can be defaulted and can have the maximum amount sued for charged against them.
Do not fail to show up.
IV. Why Depositions Are Held
Depositions have several good reasons for being held.
First, lawyers always hope to trick the other side into a mistake that destroys them. That is every lawyer's hope in holding a deposition and why your first focus when being deposed is on surviving the deposition. That does not happen very often.
Second, a deposition "freezes" a side into a position. Once you've said "a" it is very hard to come back and say "b." This has two parts. First, a deposition preserves your testimony and any evidence that goes with it (that is authenticated at the deposition). Second, it also nails down your testimony to limit your ability to change what you've said later.
Third, a deposition is a fishing trip to find out what information is being hidden or that is known. That is, a deposition is discovery. (Three reasons down and most attorneys start with the reason that fits in line with the official reason we have depositions -- discovery of the truth).
Thus a deposition looks for land mines (surprises and traps the attorneys might not know about), allows attorneys to test ideas and theories, and helps them determine which issues are in contention and which are not.
Fourth, a deposition often lets both sides get a good look at a witness (to determine their credibility with the jury) and the facts that will be testified to. This helps the lawyers consider just how a trial will proceed, and is why it is very important to dress, walk, and act appropriately in a deposition. This also allows the attorneys to make progress in settlement of the case.
Fifth a deposition often helps people decide if they still want to be involved in a law suit by making them think about the case. It also helps the attorneys remember to hone in on the issues in the case as they wait for a court date.
V. How To Think For A Deposition
Think of being careful.
· First, when you get notice of a deposition (if you are not already in a law suit), contact your attorney at once. Being careful is the first step of thinking correctly for a deposition.
· Let your attorney educate you and get to know him or her so that you can become comfortable with the attorney you have.
· Let your attorney know you on a personal level -- your special characteristics, temperament, quirks, and beliefs and how you feel you are different from anyone else.
· Let your attorney know you on a factual level -- everything you know about the case. Let the attorney help you review the facts and put them in order. You can make the lawyer familiar with technical terms, special background, and the degree of your expertise.
Take a few hours where you and your attorney can't be distracted or interrupted and go through the most likely questions, your responses and the documents you may be asked about. This lets you practice the kind of answers you will need at the deposition itself.
The common questions are:
Questions about your background (where you were born, married, went to school -- every thing that leads up to who you are today). This is often done to allow the attorney to find something (an ex-wife who holds a grudge, a state exam you failed, etc.) and to know how to question potential juriors.
Embarrassing questions (have you ever been convicted of a crime, why were you divorced, how many sexual harassment claims have been filed against you -- anything that might embarrass you or bring up a past flaw -- especially past law suits against you, claims, complaints and discipline matters).
Prior statements (what did you tell Nurse Brown about what had happened? what did you dictate for your incident report? what did you tell the family when you met at 4:00 p.m. on January 14th? who have you talked to about the incident).
Questions directly about what you saw and did and know.
Questions about documents reviewed for the deposition.
VI. How To Be Calm For A Deposition
Emotional calm is important to allow you to handle a deposition well. There are a number of ways to invoke calm.
Outside of what a health care provider would tell you about invoking calm, you should help your attorney understand and anticipate when and how you might lose your calm -- so that you can prepare him or her to protect and restore your calm.
You should arrive early enough at the deposition location to be familiar with it and choose a seat that lets you see without distractions (such as those from windows) and that puts your back to the lights (or that keeps them out of your eyes).
Sit in a comfortable chair.
Finally, realize that the attorney on the other side is there because he or she is suing you, they are not there to be your friend.
All of these things spell preparation.
VIII. How To Dress For A Deposition
You have to look the part you are testifying. From white shirts and maroon ties to conservative haircuts and a recent shave, everything counts.
Juries do not know how to directly tell who is telling the truth and who is lying anymore than any other group of citizens. They just look at people and ask themselves the following questions in order to decide who to believe:
Does he or she look trustworthy? That is the question they ask out loud. The question they ask themselves is Does he or she dress neatly and conservatively and look clean and traditional?
Does he or she care about the truth? That is the question they ask out loud. The question they ask themselves is Does he or she address us directly and respect us or not?
Does he or she look "squirmy"? That is the way jurors tend to vocalize the question. The real question is Does his or her body language match up with his or her voice and what is said? This is the one way we have to catch people telling lies -- they cease to be synchronic.
VIII. What Will Happen and Why
A. The lawyers will be either nice or nasty.
"Nice" lawyers are attempting to relax you and help you let down your guard. Often they will then try to rattle you by becoming progressively hostile and nasty.
"Nasty" attorneys start out hostile. They try to brow beat the witness into collapsing. They try to discover how the witness acts when under fire (in order to know what to expect at trial -- and especially hope for a witness who becomes sarcastic or arrogant).
Regardless of whether an attorney is condescending to you, is snide, friendly or a real jerk -- or all of these at different times, remember it is just part of the game. The best way to deal with this is to continue to be polite, calm and patient. Wait them out, remembering that it isn't you under attack -- it is the truth under attack.
B. You will be asked questions.
From background, to harassment questions designed to embarrass you (or find things to embarrass you) to slanted and even slanderous questions about what happened, you will be asked questions and the subjects and scope of the questions will probably either skip around or repeat themselves over and over again -- in an attempt to confuse you or trip you up.
Your attorney will let that go as long as you appear to be giving better than you are getting. If it seems really objectionable and your attorney just sits there, it means you are winning. It is a show of the faith your attorney has in you and often makes a considerable impact on the attorney on the other side.
Your demeanor is very important. Be simple, open and honest. You want the attorney on the other side to know that
C. You will be encouraged to give speeches, to make jokes, to give extra answers and to go on and on and on. At times you may especially be encouraged to ask questions. The attorney on the other side will do his or her best to keep you from giving yes or no answers so that he or she can use what you say in a way you did not intend it and to twist your words.
Not only that, but an attorney will encourage you to do one thing so that he can object to it later.
The fewer words you give them, the less they have to twist and the closer things stay to the truth.
IX. How To Survive
A. Take care of all the externals.
That is, dress right, prepare right, and know what you are doing and what your goals are in the deposition. We've discussed this before, but remember it.
B. Take care of all the internals.
Tell the truth and do not lie. Getting caught in a lie is going to happen when you lie and is worse than any result the truth can cause. Be calm and prepared. We've discussed this before, but remember it. You will have a separate sheet that goes over points to focus on.
C. Take the time to help only yourself.
1. Take time.
Think before every answer. Only answer questions that you understand.
Give your attorney time to help you if an objection is needed or if something else needs to be done (for example, to clear up the question if it is misleading).
Give yourself time to think before you speak.
Take time to speak clearly and distinctly and to speak out loud in words -- not in nods, abbreviations or gestures.
Take time to wait on your attorney after he or she has objected or done something else.
And take time, asking for a break, if you get fatigued.
2. Help only yourself.
Every time you volunteer more than you are asked, you help the other side. Every time you add a joke or a snide comment or "get one" on the attorney, you help the other side.
Answer the question in a simple way and stop. If the attorney looks at you as if to ask for more of an answer, just look at him and wait politely.
Do not make extra comments, do not add things on, do not add words, do not crack jokes, do not be sarcastic do not be evasive -- you have a lawyer to do all of those things and to take the blame for all of them.
X. In Summary
A. Listen and think about each question.
Pause before you speak and use the pause to think.
Have I understood it? If not, get clarification.
Think about answering only the question and nothing else -- don't volunteer or give anything away. Say yes or no if that is possible.
Wait for your attorney's objections -- listing to them to hear whatever message he or she is also trying to send you.
B. Do it cleanly.
Look them square in the eyes.
Don't confront, mock or go along with the attorney -- avoid traps.
Don't treat it as a discussion with someone -- it is a question and answer session where you want the truth to come out and they are fighting with the truth. Don't take it personally.
Be appropriate in manners, dress and conduct.
XII. The Last Word
Do not create the wrong impression. Do not give anything away. Do not give anything away actively, passively or interactively, by what you do, what you say or how you act.
SHORTCUT SHEET How Not to Give Anything Away
I. Dont Act Passively
The easiest and simplest way to create the wrong impression is by what you do not do, rather than by what you do. The basics are very simple.
A. By not preparing. Not preparing is deciding to lose.
B. By not paying attention. It is hard to give the right answer to the wrong question.
C. By not pausing to think or to give your attorney time to protect and help you. Get what you are paying for, don't give it away.
II. Interact Properly
At a deposition you can interact with the attorneys, the material and with the other people. In any interaction, you give part of yourself in return for the good will of the other side. Attorneys have nothing to give you, and everything to take.
A. Interacting with the attorneys A bad idea.
Remember: A deposition is not a conversation. In a conversation you interact with the other side giving as much as you receive, for good or ill. If the other side in a normal conversation is hostile, you may try to score points on them, show them up, or teach them something. If they are friendly, you may help them, listen, or share.
You can do that because a conversation plays to the people who are a part of it. On the other hand, a deposition doesn't play to the people who are a part of it. A deposition is taken to play to a jury. It is taken out of order, bit by bit, piece by piece, to strangers.
Always remember that anything you say or do to interact with the attorney in the deposition can later be used to harm you.
It isn't worth it to interact with the attorneys.
B. Interacting with the documents often just as bad (ask your attorney during a break).
It is easy to look at the material, the documents, the charts, the records, and see more than the attorneys see in them.
It is only one small step to go from seeing more, to saying more. "You've missed" or "looking at this I would want to know if" or "filling in the gap on this record, I would conclude" or ... countless other little things.
Do not add to the material. If the other side wants to learn something, let someone else find it for them and then teach it to them.
C. Interacting with People Not at a deposition.
At a deposition, there may be real people present. It can be tempting to interact with them from "I'm so sorry" to "you pathetic jerk." Anything you say, can and will be used against you. Nothing you say off the record can help you.
III. Watch Your Action
You don't have to wait until you are interacting in order to create the wrong impression. You can give them away by the way you dress, by your attitude, and by things you say.
A. By dress.
The way you dress, carry yourself and look can actively give the wrong impression. It is one thing to look like you've just come from the floor or the hospital, appearing as a hard working, diligent and dedicated professional. But, other than an emergency, you should dress conservatively, modestly, and in accord with the mainstream.
The owner of Penthouse Magazine can dress in a blue suede suit before a Wyoming jury. He also can live with the seven million dollar judgment that resulted from dressing that way. Remember, whether or not it is fair, the way you dress and look will testify just as loudly as any words you say.
B. By attitude.
Take a doctor for example a doctor will communicate a great deal to a jury by his or her attitude. A physician is a care-giver, a respected professional often revered in the community. A jerk, regardless of credentials, is someone that jury members want to punish. The attitude you convey will determine how the jury will look at the facts: whether they will look for an excuse to protect you or to punish you.