SURVIVING A
DEPOSITION
I.
Introduction
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.
Practice
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.
Don’t 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.
C.
Volunteering.
Don't.
Ever.