So you're going to be deposed. How do you prepare? The answer, in part, depends on what type of deposition you are facing. There are several different kinds, including:
- Those of an individual who is a party to the case
- A representative of a corporate entity who is a party to the case
- A third-party witness
- An expert
Each are different and require unique preparation. Here, I cover specific tips and strategies that can help an individual who is a party to the case handle his or her deposition with confidence.
Preparing yourself or your client for deposition starts with asking: What are the goals of the attorney taking the deposition?
THEIR GOALS
Opposing counsel likely has at least one of three main goals in mind: (1) obtain damaging admissions; (2) preserve testimony for trial; or (3) learn relevant facts, both good and bad.
The opposing counsel may want damaging admissions to support a motion for summary judgment or to impeach you at trial. (To impeach, the attorney would ask you the same question at trial that she asked you at deposition. If you answer differently, she can read, or have you read, your deposition transcript in which you answered differently.)
Occasionally, a third-party witness will not show up to testify at trial. That can happen with parties, too, but rarely since parties are generally required to attend trial. If there is a chance the witness will not show up at trial to testify, the attorney will want to preserve the witness' testimony with a deposition. Then, the attorney can introduce the deposition transcript or video at trial in lieu of live testimony from the witness.
The most common purpose of a deposition is to learn relevant facts. Key here is that the attorney wants to learn facts that are both good and bad for her case. Opposing counsel wants to know about the bad facts in order to better prepare to deal with them at trial. This is as important as learning of the facts that are good for her case.
YOUR GOALS
Knowing that these are the goals of the attorney taking your deposition, what should your goals be? Simple: Comply with your legal duty to provide truthful and complete answers, but beyond that, don't do anything to help the opposing counsel achieve her goals. That takes some strategy.
ANSWERING TRUTHFULLY AND COMPLETELY
First, make sure you understand each question before answering. You cannot control your answer if you do not understand the question you are asked. It is not your job to decipher an unclear question. It is the other attorney's job to ask it clearly. If you do not understand the question, ask for clarification. Keep asking for clarification as many times as it takes until you are certain that you understand the question.
Second, pause before answering. This may feel unnatural because in ordinary conversation, people often start answering a question before the question is even finished. You must resist that urge. Wait for the question to be finished and then take a healthy pause. Why? This pause gives you an opportunity to think about the question, make sure that you understand it, and formulate a careful response.
Also-and this is key-it gives your attorney time to (i) determine whether there is an objection that could be made, (ii) determine whether it makes strategic sense to make that objection, and (iii) make the objection on the record. Without a pause, your attorney has no chance to strategically object.
These pauses will feel awkward. Everyone is staring at you. They are waiting for you to answer the question and it just feels weird to do nothing for a moment. But here is a secret: the court reporter is making a transcript of your deposition. That transcript looks exactly the same whether you pause for a quarter second or you pause for 90 seconds; there is no difference in the transcript.
Even if your deposition is being videotaped, the awkward pauses are very unlikely to matter. The videotape might show the pause, but the videotape and the deposition transcript are hearsay. They do not come in at trial unless you are unavailable to testify live or in case of impeachment. Even with impeachment, attorneys almost always use the transcript, even when a videotape is available. There is no reason to worry about those awkward pauses.
AVOID HELPING OPPOSING COUNSEL ACHIEVE THEIR GOALS
First, do not guess. You don't know what you don't know. So long as you are testifying as an individual (and not a corporate representative who is testifying on behalf of an entity), you are under no obligation to guess what questions are going to be asked and research answers ahead of time. So long as it is true, it is perfectly acceptable to answer that you do not know. In fact, it is critical that you not answer questions for which you do not know the answer.
Do not speculate. Again, this is contrary to human nature. In normal conversation, we speculate when we don't know the answer to a question. We say "I'm not certain, but.", "I'm not sure, but maybe.", or "I don't know, but I'd guess.".
While these types of conjectures may be normal in everyday conversation, they do not belong in a deposition. Don't do it. No "buts." If you start an answer with "I don't know, but", whatever follows the "but" is likely to be rank speculation.
Instead, if you don't know the answer, say that and stop:
- "I'm not certain." Full stop.
- "I'm not sure." Full stop.
- "I don't know." Full stop.
Second, do not provide more information than is required to truthfully and completely answer the question.
It is human nature to want to try to prove your case. In fact, litigation is, by design, an adversarial process. It is natural to want to prove that you are right and the other side is wrong. And, you do have to prove that you are right, and the other side is wrong. But that happens at trial, not at deposition. Deposition is not the opportunity to prove your case. If you try to prove your case at deposition, you will only help your opponent.
The opposing attorney wants to learn not only facts that are good for her and bad for you, but also facts that are good for you and bad for her. This gives your opponent more time to prepare to deal with those bad facts at trial. When trial rolls around, she will, for example, know what questions to ask because the answers are going to be good for her side, but also what questions to avoid because the answers are helpful to you and harmful to her case. You do not want to give opposing counsel the opportunity to better prepare for trial if you can avoid it.
Also, if you provide too much information, your opponent may learn where to look for additional information helpful to her and harmful to you. Worse, the attorney may be able to surmise your legal strategy based on what facts you are emphasizing and what facts you are not. Do not provide more than what is required in the deposition.
PREPARING FOR THE DEPOSITION
In addition to these general strategies, there are ways to prepare for your specific deposition in your case. Meet with your attorney, preview what questions to expect, and review the documents about which you are likely to be asked at the deposition.
Practice with a mock deposition where your attorney should ask you questions, just like the opposing counsel will at your deposition. Practice how to avoid becoming defensive when you are asked a question in an accusatory manner. While it is natural to get defensive, people tend to talk too much when they do.
If you are practiced and prepared, it will also be easier to remember these tips and strategies and deploy them during your actual deposition.
KEY TAKEAWAYS
- Take your time. Make sure that you understand each question being asked. Pause. Give your attorney a chance to object.
- Remember that trial, not deposition, is your opportunity to prove your case.
- Finally, do not speculate.
A deposition is scary for most people. But it can be manageable, and maybe even a little fun, if you prepare and approach your deposition strategically. Good luck!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
