So, you may have a bad impression of lawyers with minimal interaction. Well, my friend, be prepared for that opinion to likely reach new depths when you get a subpoena that says you have to take a day off work to be interrogated… particularly if you aren’t even the one that’s suing or being sued. In the history of depositions, no one has ever rejoiced at it. In an effort to help give a little insight into how to lessen the pain and prepare, here’s a short list of tips that may help. Now, of course, when there’s a lawyer on your side, listen to his or her preps – they’ve been there and each as his or her own little tricks of the trade. This list is general, but I think it’s still helpful:
1. Be a Sociopath… sorta – don’t get emotional. You may be mad, you may be nervous, you may be indifferent… in any case, keep calm. The attorney that’s doing the questioning may start off trying to be your best friend or he may be a bully, but, for you, you’re only concerned about the question. Hear it, think about it (maybe even write it down), then turn to the court reporter and answer. And that even includes such little questions as “what is your name?” What will this do for you? It allows you to somewhat control the questioning. It also allows you to think about your response. As Tip #2 points out, remember that you’re under oath. That means you either answer truthfully or potentially face some big trouble. Finally, this will allow you to control your stress, get through this, and move on with your life.
2. You’re under oath aka if you lie, you’re in big trouble. Basically, you may or may not be here for a specific reason. Or, you may be there just to get some general information. It doesn’t really matter. No matter what is being asked, you’re there to tell the truth. If you don’t know an answer, that’s your answer. If you hear the lawyer defending the deposition make an objection, don’t let that affect your answer. The lawyer has to preserve the objection (basically make it there on the record or lose the chance to argue it later), but generally you have to answer. So, even if you’re giving bad news, give the truth. But, always remember, answer the question and only the question.
3. A ‘yes or no’ question has three answers ONLY… yes, no, or I don’t know. This one is pretty straightforward, but it is the easiest one to mess up. If you are asked a yes or no question, there’s no elaboration needed. And here’s a trick of the trade to watch out for – your answer is a simple “yes” and then the interrogating attorney pauses and starts looking through a notebook. Generally, the point is that people are uncomfortable with silence so people want to talk. You start explaining your “yes” and next thing you know, you get to answer fifteen other questions that box you into something. If you’re uncomfortable with silence, start counting in your head or drawing on your notepad – whatever it takes.
4. You may get the same question 30 times… that doesn’t equal 30 different answers. So, you’ve followed all of the tips and now the interrogating attorney is getting agitated. He may start asking you basically the same question in many different ways. His point in this strategy is to get you to give a variation in the answer that will open the door to questions to pin you into saying something different, and, perhaps, something you don’t really mean. If the answer is the same, give the same answer. Period. If the question actually calls for a different answer, then give it. However, if you need to give a different answer, then you should explain the context for the difference.
5. The attorneys turn into high school students… the annoying ones. Sometimes a deposition will go smoothly and the lawyers will act professionally. However, many times, you end up with one or both sides’ attorney using puffery or intimidation tactics. It doesn’t necessarily mean that the attorneys will attack or do anything to you, but you may get stuck in the middle of an argument between the attorneys where you’ll notice a good bit of puffery and, frankly, childish bickering. You have no dog in that fight – don’t join in. If the interrogating attorney is attacking you and the defending attorney isn’t standing up, you may acknowledge displeasure at the mistreatment, but just remember Tip #1.
6. When you’re done, stop worrying about it – that’s why the lawyers are there. Pretty simple… once the deposition ends, don’t waste your evening worried about what you said. It’s over. Now the lawyers can quibble over what’s transpired and proceed with the case accordingly. One caveat, however – if you realize you said something that was incorrect, tell the defending attorney immediately. Certain corrections may be fixed up. And that’s why, again, to remember to think of each question thoughtfully, and answer directly to the truth.
Well, there you go, a deposition survival guide in a nutshell. A main take-away is that depositions shouldn’t be a cause for panic, but they are important, so take time to prepare. Also, keep in mind that the interrogating attorney, while it may seem like he hates you – he doesn’t. Depositions are just a big part of developing the legal theory and strategy, and some attorneys are better at it than others. You’re there to answer the questions asked to the best of your knowledge and that’s it – no more, no less.