LegalEdge: Tips for a Good Deposition
There are many articles on depositions, but few are drafted for the people being deposed. This article provides tips for a giving a good deposition and can be provided directly to your clients that are preparing for a deposition.
1. Understand the Deposition Process
At a deposition, there is a court reporter (who transcribes the questions, answers and objections), the deponent (who is the subject of the deposition and will be questioned), the defending attorney (who represents the deponent and is defending the deposition) and the questioning counsel (who asks questions in the deposition). Parties to the lawsuit can also attend depositions.
Depositions typically take place at the deponent’s attorney’s office or at a location that is convenient to the deponent. While depositions do not take place in court, they should be treated as though they do because everything said can be equally used at court. Depositions should last seven hours or less.
2. Be Honest
The most important tip in giving a good deposition is to tell the truth. You are under oath at all times during the deposition. Not only are their legal consequences, including perjury, for being dishonest, but being untruthful is also the quickest way to dismantle your case.
Telling a lie requires another lie to cover-up the first lie. This sequence creates a limitless cycle of dishonesty that the evidence will not support. It is critical be truthful. Otherwise, your case will fall apart, which could become the least of your worries.
3. The Four Horsemen
The Four Horsemen of a good deposition are (1) yes, (2) no, (3) I cannot recall and (4) can you repeat the question? As a deponent, your duty is to tell the truth and answer the question that was asked. If the answer to a question is “yes” or “no,” then answer “yes” or “no.”
If asked what time it is, tell them what time it is; don’t tell them how to make a luxury watch. If you cannot remember the answer to a question, then say that you cannot recall. In a deposition, you are under oath and everything you say can be held against you. Guessing the wrong way has consequences, and the law does not require you to speculate.
Lastly, if you do not understand the question or need clarity, ask that the question be repeated. These four responses are what I call the Four Horsemen of a good deposition.
That said, there may be times where you want to convey more than a simple “yes” or “no” and drive our own positive themes and messages forward. This is what we call the “yes and,” “yes but” or “no and” or “no but” response.
These responses are necessary where the other side is trying to use you to convey his or her point of view, and it is important to answer but convey your own message in response so you are not simply agreeing with what the questioner asked.
4. Look Good, Feel Good
Understand whether the deposition is being videotaped or only being transcribed. If the deposition is being videotaped, which typically only happens in preservation depositions or those involving an important witness, then that video can be used at trial and, thus, be viewed by the jury that is deciding your fate. As such, dress as you would at trial – in a suit and tie. Even if the deposition is not videotaped, dress well. You want to be confident, and looking good goes a long way towards this goal.
5. Be Aware of the Pregnant Pause
Human beings dislike silence while in social interactions. Empirical studies have found that, even when trying to stay silent, human beings can only maintain silence for seven seconds, at which point continued silence becomes very uncomfortable, typically resulting in someone breaking the silence by speaking.
This psychological tendency presents a powerful way to get deponents to say more than they should. Be aware of your discomfort with prolonged silence and don’t fall prey to the pregnant pause.
6. Preparation
Like any performance, preparation is key to giving a good deposition. You should review any documents or potential evidence related to the case. This includes emails, contracts, reports or any other materials that may be relevant to the deposition. Being well-acquainted with these documents can help you answer questions accurately and confidently.
Also think about the questions that the opposing counsel may ask and prepare your answers. Consider the weaknesses in your case and orient your answers in a truthful way to lean on your case’s strengths and minimize its weaknesses. Your lawyer can help with this brainstorming.
7. Listen and Understand the Question
Don’t rush your responses to questions. This deliberation serves two purposes. First, it allows you to absorb and comprehend the question. And second, it provides your lawyer with sufficient time to object if needed. To this point, don’t forget one of our four horsemen – if you don’t understand the question, don’t be afraid to clarify!
8. Maintain Composure
Depositions can be intense, and you may face challenging or confrontational questions. Indeed, if you are the party in a case, confrontational questions are almost inevitable. It’s important to remain calm, composed and respectful throughout the deposition. Losing one’s temper or becoming argumentative can harm the credibility of your testimony.
In the end, depositions are just conversations. There is no need to be nervous. But it is important to be prepared. Preparation will greatly enhance your performance and assuage any anxieties you may have.
Jake Evans is a shareholder at Greenberg Traurig, who practices complex business litigation and is the former chairman of Georgia’s State Ethics Commission.
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