A deposition is what I call a “friendly interrogation.” Generally, your deposition will take place in a conference room setting where you will be seated across from an attorney that will be asking you questions. Usually, your deposition will last, at a minimum, about an hour, but can last up to 6 hours or more, depending on the facts of the case and your role in it. Regardless of how long it is, and who the attorney is asking you questions, below are some general rules you should follow to help you get through it and to do the best job you can.
- Breathe. This may be the most important rule. A deposition can, and usually is, a nerve-wracking experience. You will feel worried and possibly even lose sleep over thinking about how you’re going to do. So, first thing to do is stop, take some deep breaths, and try to stay calm. This rule doesn’t just go for pre-deposition, but also during the deposition. If you find yourself getting flustered, stop and take a deep breath.
- Don’t Lie. This is probably the most important rule. Lying is the only thing you can really do to harm yourself and, if you are the one bringing the lawsuit, your case, during your deposition. This doesn’t just mean not saying “green” when you know the answer is “red.” This means don’t exaggerate, don’t stretch the truth, don’t embellish. The facts will come out, and if you try to make something seem better or worse than it is, it can blow up in your face. Lying is also one of the ways your deposition will be used against you at trial – the jury will hear what your answer was during your deposition, under oath, and if it’s different from what the records show, or worse, from what you are now saying at trial, you will lose your credibility and a jury won’t care about any of the other facts that come out.
- Take your time and speak slowly. Fight the impulse to blurt out everything you know and feel like you need to tell the attorney. You can answer a question just as effectively in a few words or sentences versus telling a long story with tangents. And, this will help you get through your deposition faster. It may seem counter-intuitive but taking your time and answering slowly will actually make your deposition take less time.
- Pause before you answer. This goes hand in hand with taking your time, and will allow you to think about you answer before you speak. It will also allow your attorney time to make an objection if one is necessary. Unlike what you may see on TV, lawyers cannot interrupt witnesses, and have limited opportunities to raise objections. Pausing before you answer allows an opportunity for the lawyer to make any appropriate objections.
- Only answer the question that is asked. This is a simple concept to understand, but hard to implement. Instinct tends to tell you to answer the question and provide more information. Do not volunteer information. You don’t need to be evasive or intentionally difficult, but do not go into areas about which the attorney has not asked you. If the attorney asks you when something happened, just give a date or time or other short answer as to when something happened. You are not there to tell a story, only to answer the questions the attorney has asked.
- You will not convince the deposing attorney of anything. The attorney is not there to be persuaded that you are right and his or her client is wrong. Remember, the attorney is being paid to represent the other side and to not believe you or to find holes in your story. Your deposition will not result in the attorney changing his or her mind about what the facts are, or thinking that his or her client should lose the case. That is not the point of the deposition.
- Don’t argue. Leave arguing to the attorneys – that is their job and what they do for a living. You are there to answer questions about what you know and remember: the facts, and nothing but the facts.
While these general rules are helpful in making your deposition go smoothly, you should always meet with your attorney before your deposition to properly prepare and discuss any topics specific to the case. It is important to meet with your attorney to prepare, and to do so as close in time to your deposition as possible so that you are fully prepared.