After weeks or possibly months of litigation your case has finally proceeded into the discovery phase. This protracted process has resulted in your deposition notice. The much anticipated -- and more likely dreaded -- day is quickly approaching. At this point feelings of fear and uncertainty are completely natural.
What will they ask? Will I perform well? What if I don’t want to answer a deeply personal question? What if I don’t know the answer? Will they even believe me?
All of your questions are valid and understandable. A deposition, for those first timers (or even an experienced deponent) can cause a level of anxiety unlike anything else. How you prepare and perform can and likely will impact the success of your case. Although there is no substitute for preparation, keeping these simple 5 tips in mind can, and likely will, ensure you present your best self on deposition day.
1. Stick with the Truth
The truth doesn’t change. It is also much easier to remember and keep straight than a lie. Contradictory or changing answers will call your truthfulness and overall character into question, which will likely hurt your case down the road. Your best bet is to always tell the truth. Do not lie or be creative. It will bite you.
Additionally, prior to the start of your deposition you will be sworn in by the Court Reporter. What that means is that your testimony will hold the same weight as it would in a courtroom. You are required to tell the truth and can be subject to penalties if you perjure yourself during your deposition. Bottom line, the truth is and always will be your best bet.
2. Listen Carefully
It is imperative that you are listening to the attorney’s question in order to produce the most honest and accurate answer. If you are unsure of what the question was, ask the attorney to repeat the question. If the question is confusing or was phrased in a way that you do not fully understand what you are being asked, simply ask for the question to be rephrased. It is better to ask for the question to be restated or rephrased rather than giving an answer to a question you are unsure of. The last thing you would want is your truth to be manipulated by the other side.
3. Only answer the question you are asked
You will be asked specific questions intended to produce specific answers. Don’t over divulge, engage in a narration or try to make your preferred answer fit the question. This can lead to objections from opposing counsel, or even worse, you offering up too much information that will later be used against you. Keep it simple. If you are asked what time it is, don’t explain how a clock works. Simply answer the questions as concise and complete as possible. It is the opposing attorney’s job to do the work and get the answers they want, don’t make their job any easier by offering more information than you were asked for.
Your deposition alone CANNOT win the case, but your poor deposition alone can lose the case. Do not try to win the case. Just survive it. Stay with the facts pertaining to the questions asked. Do not try to help or be creative.
4. It’s okay not to know all the answers
Being asked a question for which you don’t know the answer can cause a wide array of emotions. Fear, anxiety, annoyance, frustration, and embarrassment are just a few that come to mind. In other life situations, a guess or assumption may be appropriate. BUT NOT IN A DEPOSITION! Do not guess or speculate during a deposition. If you do not know the answer, say “I do not know.” If you knew the information at some point, but have since forgotten or cannot be sure, say “I do not recall.” Your best answer is once again the truth, so if you do not know for sure or cannot recall then simply say so. Do not avoid unpleasant answers with a river of “I don’t remembers”. You will appear inauthentic as your memory will be crystal clear on other topics but conveniently poor on others.
5. Stay Calm
It is 100% normal to feel uneasy during a deposition. But don’t let your nerves or the attorney’s questions get the best of you. You should avoid answering questions in a defensive, argumentative or apologetic manner. Your attorney is there to protect you, let them do the fighting.
Remember to remain calm. Breathe in and out at least one full breath and think over the question and your answer before you speak. Always give your attorney a second or two to make any objections on the record before you answer the question. This pause not only helps your attorney possibly prevent you from answering a question that the defense is not entitled to, but will also give you a chance to breath, think and respond with your best, most accurate answer.
There is no speed limit on answering. Your deposition will be booklet. It doesn’t matter if you took 5 minutes to think thoughtfully about your answer.
Keeping in mind the above tips should make the deposition process a little less nerve wracking. Remember, at the end of the day, a deposition is nothing more than a question and answer exchange between you and opposing counsel. Take this opportunity to tell your side of the story and stand up for what is right. After all, YOUR TRUTH doesn’t change.