My husband always finds it amusing when I talk about going “to depose” somebody. He wants to know just exactly what sort of coup d’etat I am planning. Despite the awkward language, the deposition process is not supposed to feel like water boarding, although if you don’t know what to expect it can be more miserable than truly necessary.
Simply put, a deposition is a chance for the other side’s lawyer to make you answer a whole bunch of questions (some relevant, some seemingly irrelevant) under oath. That is, first you put your hand on the Bible and swear (or affirm) to tell the truth, the whole truth, and nothing but the truth. In reality, depositions serve a variety of purposes– they educate the lawyers about the facts of the case, they give a preview of how you would “present” to a jury (i.e., would a jury like and believe you?), and they can be used to position a case for certain later dispositive motions (that is, summary judgment– stay tuned for Part 8 of the series on that issue).
While no deposition is ever a picnic, knowledge is power! Remember these simple rules to make it through the day relatively unscathed:
Ask for enough information & time with your lawyer to be prepared. You may think you know all the facts of your construction project, since you’ve lived it, but it is always recommended to take some time both to review key project documents and to discuss expectations (and possibly role-play) with your lawyer. Find out if your deposition will be video taped or not. Find out if you are supposed to bring (or not bring) any documents with you. Discuss how long the deposition will likely last, and then double or triple that time. (Lawyers are notoriously optimistic when it comes to time estimates!). Ask your lawyer how you should dress. Remember that part of the deposition is the other side “sizing you up,” so please, don’t show up dressed for a day at the beach or the club!
Remember the cardinal rule of depositions: always tell the truth. Now, while you do not have to go out of your way to volunteer where you may be at fault, you do have an obligation to answer the questions posed. There are various ways to handle incomplete or unclear questions. Sometimes, while not required, it can help position a case for settlement if you go in depth to explain your reasoning, rationales, and the like. Other times, that may not be wise. Find out your lawyer’s preference and strategy ahead of time. Remember, though, an ideal deposition is boring, more boring, and then over. Never try to “win” your case in deposition– it can’t be done.
Remember that the opposing lawyer is not your enemy, and not your friend. Do not let them get you angry or excited. Remember that even things discussed “off the record” can later be used to find out information “on the record”. From the moment you enter the building, remember that off-hand comments can sometimes sink your case. Don’t discuss your testimony in an elevator, a bathroom, or hallway, unless you are *sure* that no one from the other side is present.
Don’t treat the deposition as a marathon. You will get tired. You will get frustrated. You will lose your patience and think that Shakespeare’s Dick the Butcher was right when he said the first thing they should do is to “kill all the lawyers.” ** Regardless, remember that you do get certain rights as a deponent. For one thing, if you need a break, you can take one (so long as there is no pending question that has been asked). If you need to take a stretch, you can. If you need some water, you can get it. Remember this power, and (responsibly) use it as necessary. Don’t let fatigue cause you to make important errors– take the breaks you need to give fresh, clear, and correct testimony.
A day in the park it is not; however, with these tips your experience “being deposed” may go just a tad bit smoother.
** Ironically, this often mis-understood quote, from Shakespeare’s King Henry VI, is actually a tribute to the importance of lawyers. Shakespeare’s quote was acknowledging that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers.” [Sorry-- did I mention I was an English major in undergrad?]
Have you experienced a deposition? What do you know now, that you wish you knew then?
Photo modified from image (c) by Johnny Berg.