In re Deposition Preparation, 5 Nev. 1 (2012).

Frequently when I represent a client in a lawsuit, I find myself preparing my client for his or her deposition. What is a deposition? A deposition is a tool by which an attorney on behalf of their client can find out and discover evidence. This is done by putting a person under oath and asking them questions which a recorder or reporter takes down in transcript form. Depositions are not taken before a judge in most civil proceedings. The oath is the same oath taken in a court of law and carries with it the same criminal penalties of perjury if violated by the witness (also known as the deponent). A deposition is not a conversation, it is a question and answer session that borders on the point of a full out interrogation by the attorney taking the deposition of the deponent. With some few exceptions, a deposition is the only time the opposing side’s attorney gets to talk to a represented client. A deposition is not the time for a deponent to be overly helpful to the opposing side (if the deponent is involved as more than a third party witness and is instead a client). Nevertheless, a deponent does have an obligation to answer almost every question asked of them under law.

Depositions are much broader in scope than testimony at trial. A deponent is typically asked about their educational background, work history background, personal relationships as relate to the case, all sorts of facts and events as relates to a case and even about legal theories, claims and beliefs of the deponent. Questions that are generally not permitted are those that delve into areas of attorney client privilege or similar protected information or questions that are badgering and harassing. Only certain communications are privileged. Most questions, even personal ones do not constitute harassment. It is important to keep in mind that at trial many of the questions asked during a deposition cannot be asked at trial due to rules of evidence. On the flip side, if you as a deponent are a party to a lawsuit, anything you do say may and will be used against you in some fashion or another by the other side during a trial or a motion hearing to prove their position and disprove yours. A client’s conduct during a deposition can alter positions and strategies on both sides of the case. Sometimes these alterations are positive for a client, sometime negative.

Depositions generally can last up to 7 hours per day and can continue on through successive days until completed. If you as a deponent are represented by legal counsel, your attorney will be there with you but there is very little your attorney can do during the deposition to help you answer questions. Your attorney cannot answer for you. Your attorney cannot signal you how to respond. You cannot ask your attorney for help during the deposition if you don’t understand a question or if you are not sure how to answer. Your attorney may raise objections but unless he or she instructs you not to answer, you must still answer the question. You as the client and as a witness must speak for yourself. What you say can help or hurt your case or the case of others. Therefore it is critical that a deponent be prepared for what to expect when facing a deposition.

During the deposition, the attorney on the other side may appear or come across as friendly, kind, understanding, aggressive, snide, disbelieving or even rude. Unless the questioning attorney actually violates a procedural or ethical rule, just about anything goes and it is vital that a witness keeps calm and focused and does not react to provocation. The attorney on the other side is NOT your friend. Conversely, in most cases the attorney on the other side is just doing his or her job and their questions are not a matter of personal attack but gathering of information and furthering of case strategy.

I have some common rules that apply to most civil depositions that I review with my clients. Obviously, if you are noticed to appear for a deposition, your individual deposition preparation will vary depending on the facts of the lawsuit in question and you should consult with your own attorney to prepare rather than just relying on these general pointers. What follows are five general guidelines that can aid in deposition preparation but are certainly not the be all end all of deposition prep.

RULE 1: TELL THE TRUTH. Very simply, when answering a question only speak the truth based on your perception, recollection and memory. Not only is lying an act of perjury which carries with it criminal consequences, very frequently a lie can be easily detected by the other side. If you as a deponent are shown to be lying, your credibility at trial suffers and your case consequently is negatively affected. Both judges and jury weigh your credibility when deciding cases. If you lie you also are potentially placing your attorney in an ethical dilemma which may lead to them withdrawing as your counsel because attorneys have ethical duties of candor and truthfulness to the court and to the opposing party. It is hard to keep lies straight and makes it extremely difficult to prove a case based on lies. If you are worried about revealing certain facts, discuss this matter with your attorney ahead of time. Sometimes being open and up front about facts that could potentially harm your case takes the wind out of the sails of the other side’s argument. Keep things simple. Tell only the truth.

RULE 2: DO NOT GUESS; DO NOT ASSUME; DO NOT MAKE THINGS UP BECAUSE YOUR MEMORY IS UNCLEAR. This rule goes hand in hand with telling the truth. Too often during a deposition a deponent will be pressed on a particular factual point by the interrogating attorney. The other side is looking for an answer. They will ask and reword and ask the same question again and again in some instances. If they ask you if something did or did not happen, it is completely acceptable to say “I don’t know” or “I don’t remember.” If that is the truth, then stick to the truth. If you are pressed or the other side tries to jog your memory (all perfectly acceptable deposition practices) only change your answer if your memory is actually refreshed. Do not suddenly say “I assume X could have happened” or “I guess that is right” if you do not actually know for sure. Do not imagine things. Either you recall and know what happened or you don’t. Even if you think it will somehow help your case, do not assume. Stick to your answer. Otherwise, you are opening up weaknesses to be exploited later in your testimony and your credibility as a witness.

RULE 3: ANSWER ONLY THE QUESTION ASKED, NOT THE QUESTION YOU WANT THEM TO ASK. Too often in deposition even after being warned, deponents will fall into the trap of thinking the deposition is a friendly conversation. Worse, a deponent will think they have to prove something to the other side or are arguing their case to the other side. Deposition is not trial. You are not there to prove anything to anyone. The more you talk the more you are giving to the other side to use against you. Remember why you are there: this is the other side’s one chance to talk to you face to face and ask you questions that you must answer. The other side is on a fishing expedition. They are not there for you to be friends with. They are not there for you to argue with. They are not there for you to convince or persuade. They are their for their client only. The more you give them, the more they have to use against you later. Therefore if someone asks you a question, no matter if you think the answer “sounds” bad in your head, answer only the question asked. For example:

Question: “When do you believe you and Mr. Smith entered into a legal contract?”
Answer: “In June of last year.”

That is an appropriate way of answering a question. What follows is an example of a deponent who is answering much more than the question.

Question: “When do you believe you and Mr. Smith entered into a legal contract?”
Answer: “It was in June of last year when we met for dinner. He promised me that he would buy my widgets for $100.00 and he promised to buy 50,000 widgets immediately. So I went back to my factory and built 25,000 widgets. And I would just like to say something for the record. Mr. Smith made me a promise, to my face and I trusted him. He is a bad and dishonest businessman because he did not keep his word. I don’t just believe he and I had a contract, I know we did and so do you if you did your job.”

While the answer above may be the truth, that answers far more than the question and opens up an entire line of additional questioning for the other side to go into. Why give the other side more than what they ask for? Why argue with them or get emotional? They will not decide the case– a judge and/or jury will. The attorney on the other side is evaluating you for weaknesses in your character, credibility and “like-ability” as a witness as much as they are trying to uncover evidence that helps them. It is much better to listen to the question and answer only what is being asked.

RULE 4: UNDERSTAND WHAT YOU ARE SUING ABOUT/BEING SUED FOR. Very often in depositions, a witness who is also a party in a lawsuit (not just a third party witness) will be asked point blank questions like the following:

“What are your damages?”
“What is your understanding of the contract are you suing under?”
“What facts do you have that support your claim that my client committed fraud?”
“When was the contract in your mind breached?”
“Were you aware of the risks before you went ahead and acted?”
“Who entered into the deal, you or your company?”
“Do you think you were paying attention at the time of the accident?”

These and similar questions all use language that has very specific legal significance. Your attorney cannot help you with these questions even though they may be based on legal theory. The other side can ask for your understanding of certain legal ideas and concepts and you must be prepared to answer. You must have an understanding of your case and what you are suing for or defending against. Your attorney will help you prepare for these questions and assist in mitigating any fall out at trial or at hearing if you answer in a way that negatively impacts your case. However you as a client need to have a basic understanding of what the lawsuit is about. You cannot simply guess or make up something on the spot without any basis or understanding. Take the time to understand how the facts have been placed into a legal framework. Ask your attorney questions. If your attorney’s answers are unclear, let your attorney know. Be able in your own words to articulate why you are in a lawsuit and, as applicable, what your damages are.

RULE 5: KEEP CALM. Anger, frustration, stress, anxiety and confusion are all normal reactions to being deposed. You are on the “hot seat” so to speak and every word you say is being recorded to be used against you if possible. Focus on answering one question at a time. Listen more than you speak. If you are unclear about a question, ask it to be rephrased. If you answer a question, it is assumed you understand the question. Do not allow yourself to be provoked. The facts are the facts. There is no way to time travel (yet) to change what happened. Good, bad or indifferent, the events that have lead to a lawsuit have already occurred and cannot be altered. Take a deep breath and stay focused by keeping your emotions in check as you answer to the best of your ability, truthfully and according to your actual recollection.

Do take preparing for a deposition seriously whether you are directly involved in a lawsuit as a party or are just a third party witness. Your words and actions during a deposition can affect the outcome of a case or the possibilities of settlement. Do take the time to work with your attorney so that you can provide your very best testimony. Good luck.

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