If you are ever involved in a lawsuit, you likely will be asked to give a deposition. Exception: Depositions usually are not taken in small-claims court cases.
Giving a deposition means answering questions posed by the opposing counsel prior to the trial in the presence of your own attorney and a court reporter who transcribes the proceedings. The primary purpose is to record your version of the facts in advance of trial so that it can be used to challenge a change in your testimony. The opposing lawyer also tries to trick you into saying things that work against your interests or make you seem dishonest. The lawyer might try one or more of the following…
Remain silent and stare at you after you answer a question. Long silences make people uncomfortable. The attorney is hoping that you will fill this awkward silence by saying more than you should. Remind yourself that it’s a trick, and keep your mouth shut once you’ve said what you need to.
Ask questions subtly different from what you expect. If you fail to pay close attention, you won’t notice these subtle differences and will damage your case by providing answers that don’t fit the questions in crucial ways.
Example: A lawyer asks, “Were you driving at the speed limit when you went through that red light?” If you’re not paying close attention, you might not realize that answering yes makes it seem that you’re admitting to running a red light.
Insist that you answer certain questions either “yes” or “no.” You are not required to follow this yes-or-no-only instruction. You can respond, “That’s not a question that can be answered with just a yes or no.”
Ask what you have done to comply with the lawyer’s request for documents and e-mails relevant to the case. If your response seems vague or unusual, an attorney might decide to dig deeper into your affairs. If you answer, “I handed everything over,” this could be used to make you look dishonest if there’s something you accidentally forgot to provide. The best response is to very briefly discuss your process.
Example: “I searched my e-mail files for your client’s name, printed out everything that came up and gave the printouts to my attorney.”
Cut you off with a new question during your response. Insist that the lawyer give you a chance to finish answering the previous question.
Frame questions in a way that you must choose between making statements against your interests and being dishonest. When you feel trapped between hurting your case or lying, consider whether it’s appropriate to answer, “I’m not certain.”
If the attorney follows up by asking for your best guess or estimate, repeat that you don’t know—do not guess.
Try to make you angry. This could include baiting you with sneers or a patronizing tone. Deposition transcripts include only what is said, not how it’s said. If you get mad, you might say something that will make you look bad during the trial.
Alternative: The opposing attorney might instead be very friendly. This also may be a trick. He’s hoping that you’ll let down your guard and say something that you shouldn’t.
Ask you if you spoke with someone other than your lawyer to prepare. Don’t say anything about the case to anyone prior to your deposition. This person might be subpoenaed.
Source: Dan Brecher, JD, counsel to the New York City and New Jersey law firm Scarinci Hollenbeck, LLC. He recently obtained eight-figure judgments in two separate cases based largely on information obtained during depositions. www.ScarinciHollenbeck.com