Don’t be Afraid of Your Deposition: 7 Tips for Those Being Deposed

Depositions - Reducing Fear of a Deposition book

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Have you been informed by your lawyer that the other side wants to take your deposition? If you have, in all probability you are very nervous, and in fact, you may be downright afraid.

Know this: you are not alone! Most people who get served with a Notice of Oral Deposition are frightened because most people have never been through a deposition, and because there is that innate fear of those “evil lawyers who want to embarrass, humiliate, and destroy me.”

Fear not. There are some simple things that you can do (and some that you avoid doing) that will (1) relax and put you at ease and give you confidence for your deposition; and (2) guarantee that when you leave the deposition room, you will leave with the knowledge that you did well, and the chances are pretty good that your attorney will pat you on the back and say “Well done.”  If you follow these tips, the odds are pretty good that you are going to do well in the deposition.

Seven Tips to Reduce Your Fear of a Deposition

The following are 7 tips that will help stabilize you, reduce your fears, and give you confidence. I have been in many depositions, sometimes with the client who was being deposed, and sometimes I was there as the attorney giving the deposition. As such, I have learned a lot of things about individuals who do well in depositions, and why, and those who don’t do as well, and the reasons why they did poorly. Almost always, it involved some of the things I will share here with you. So, if you will follow these tips, you will be one of those who does well in your deposition.

1. Preparation. You need to know the facts as much as you can, but, it is not the end of the world if you forget some facts. I have been surprised at individuals who seemed to not be able to respond properly to the questions simply because they did not appear to know the facts of their case. If you are in an auto accident, for example, surely you are going to know the relevant facts about that accident. If there is something that you should know that you do not know, you have all the documents available to you to find out. If you need a copy of the police report, or you need dates and other such information, those are all available to you. Ask your attorney for a copy.

However, most of those kinds of things are not that critical, so even if you forget, do not worry about it. If you do not remember the exact time  that the accident occurred, or any incident occurred, that is something that can be determined at a later date, or through other documents. It is not the end of the world.

Now, it is better if you know those things, but some folks because of their nervousness may forget the date, or time, or some other fact. But, and this is important, if you cannot remember something that you probably should know, or that you once knew, do not say “I do not know,” or “I do not remember.” Instead, say “I do not recall at this time.” Or, you could say something like this: “I do not remember at this time, but if you have the police report or if I could look at such and such a document, to refresh my memory, that would be a great help.”

Lawyer’s Cure for a Poor Memory

Realize that part of what the attorney is doing when he or she is asking you questions is testing your memory, and trying to determine what kind of a witness you are going to be on the stand. If you get on the stand in trial and you do not remember a lot of those facts, it is not the end of the world.  Your attorney will simply say “If I show you such and such a document, will that refresh your memory?” You will, of course, say yes, and the attorney will show you the document, then you will answer to the attorney that your memory is now refreshed, and you’ll answer the question. It is done thousands of times a month across the nation, and has been a standard practice for many years. So, relax. There is a cure for your poor memory.

Do not get too uptight if, in your preparation, you find it difficult to recall some things. Now, having said that, let me add this. There are some things that you must remember. For example, if you were in an accident,  you certainly need to remember if it was the defendant who struck your vehicle and ran through a red light, and that you had the green light. You need to remember the pertinent facts (unless you were injured severely and have no recollection). If you have trouble with those kinds of facts, then you can hurt your case, unless there are other witnesses and/or facts that prove them. However, even if you forget such things  out of nervousness, your attorney can come back and correct it, and give you an opportunity to explain why you could not remember, or why you got some particular fact incorrect.

Bottom line: you do not have to be a walking databank of facts remembering every minute detail about every moment of every day. If you forget something, simply say in the deposition, “I do not recall at this time, but if you give me a few minutes I may remember, or perhaps later in the deposition I will remember.” I have had clients who have been unable to remember certain facts and later, during the deposition remembered them. My instructions to my clients prior to the deposition was that if he or she remembered something that they either forgot or should have said during the deposition, then at some point during the deposition he or she should simply speak up and tell the attorney what was forgotten.

2. Stimulants. Stay away from the coffee and other stimulants, especially alcohol. Caffeine will give you a boost, but then comes the crash. Also, caffeine can also make you nervous, fidgety, and can even make you forget things that you really did need to say during your deposition. Also, do not drink a lot of water or pop because at some point you are going to develop a need to go to the bathroom and you are going to be distracted by that. However, you need to know the deposition is a rather informal process, and if you have a need to go to the bathroom all you have to do is say, “could we take a short break so I can go to the bathroom?” In the introduction by the other attorney they almost always tell you about that, but if they do not, realized that you are not in a prison and you have the freedom to go to the bathroom anytime you want, as many times as you want.

3. Short and Sweet. Keep your answers short and to the point. You do not need to tell the other attorney everything you know on the subject. The question asked by the attorney is not your opportunity to tell everything you know on the subject. Simply respond to the question and nothing else. If the answer calls for a “yes or no,” then respond with one word, not several paragraphs. Your answer to a typical “yes/no” question should be one of three responses: (1) yes; (2) no; or (3) I do not recall at this time. (Or, that you do not recall at this time, but perhaps will later, or with some help from a particular document, you could supply the answer.)

4. Speculation. Never speculate. You do not want to be guessing at the answers, and you do not ever want to speculate about an answer. You are there to tell what you know, not what you guess, or what you think might have happened, or what you think might be the answer. That really is a good thing for you (to not have to speculate) because the burden on you is pretty simple: you only have to tell what you know, not what you think you know. You are not in the position where you have to make up stories to fit the facts. Indeed, do not ever do that in a deposition. If you are asked a question concerning a subject or facts or an incident or events of which you have no knowledge about, and the question is phrased as a “yes/no” question, then simply say: “I do not know anything about that.” It would be impossible for you to say “yes or no” to such question. You need to be alert to those kinds of questions. (But, realize that if you miss it, your attorney is not likely to miss it and will correct the situation, so rest easy. Your lawyer has got your back.)

5. Be Alert. Here is a little trick some lawyers will do. A lawyer will ask a question and then later will come back and in his or her question, will be buried facts that are incorrect and will be designed to get you to give a simple yes or no to the question. However, what you should do is either ask for the question to be rephrased, or simply tell the lawyer: “I do not know how to answer your question the way it is phrased because one part of it I can answer one way and the other part I can answer another way.” (Realize your lawyer will be far more alert than you are for these kinds of questions and should object, which will alert you to the problem.)

For example, suppose the lawyer had asked you a question earlier as to the defendant striking your vehicle, and you answered yes to that question. Then, later in the deposition the lawyer asked you this question: “Now, you said you had the green light when your vehicle struck the defendant’s vehicle, correct?” Clearly, that is a question your attorney would object to as being incorrect and is in fact misleading, since it misstates the facts testified to, but if your attorney misses it, then you need to make sure that you are not quick to answer that question as a yes. Instead, you would want to say, “Counsel, the defendant struck my vehicle. I did not strike his vehicle.” Feel free to correct the attorney’s misquotes of yourself or makes a misstatement of the facts.

What I am trying to do here is give you some assurance that you have more latitude in the deposition than most deponents (that’s you)  know. You have the right to correct the attorney. You have the right to tell the attorney that he is wrong, or that he misstated a fact. Do not be shy. It is your case, and whether you are a defendant or whether you are a plaintiff, you have every right to make sure the record is correct. In short, stand up for yourself. If you are a lady, pretend that you are in your kitchen and everyone there is a stranger. It is your house. You have every right to control the situation, and you can control the deposition in many respects. You can correct misstatements, whether they are yours or the lawyers. However, do not get into arguments or debates with the lawyer. Never do that. There are several reasons why you should not do that, which I will not get into here, but one of them is a very simple one: the more you speak, the better it is for them, so the less said the better. The more you speak, the more apt you are to say something your attorney would have preferred you not say.

You can ask for a break. And, if the circumstances warrant it, you could even ask to continue the deposition. (Realize, there might be some monetary costs to doing that, but if you had an emergency, or if you felt ill, or you had some other good reason, you have every right to ask that the proceedings be put on hold and that the deposition be continued to the next day, or to the next convenient date of the parties.)

6. Personal Notes. Leave them home or give them to your lawyer. Technically, if you pull notes out of your pocket, the opposing counsel can ask for a copy of those notes. So, the best thing to do is this: if you want to make some 3 x 5 note cards with facts that are just that, facts, then you can bring those in with you and refer to them, and if they want a copy of them, fine. (Always show them first to the attorney to make sure it is okay. The lawyer may not want you to bring anything in writing to the deposition!)  Caution:  do not bring in notes that might contain information that your attorney would prefer they not have, or information that you would prefer they not have, since your note book might have personal information in it as well as information about your case.

7. Tell the Truth. You do not have to volunteer every fact that you know to be true, but you are obligated to respond truthfully to every question put to you in the deposition. Do not be afraid of the truth. Every lawyer knows that there are some facts in his or her case that the attorney would prefer never see the light of day. However, most lawyers will not take a case if there is a fact or facts in existence that, if known, would destroy their case. So, even if you have some things that you would rather the other side did not know, do not be afraid of those facts,  and do not be afraid to answer truthfully to those questions that bring those facts out. Your lawyer’s job is to mitigate the damage those facts might do to your case. That is not your job. So, you have nothing to fear, if you tell the truth. It is a matter of “what is, is.”

Look at it this way. If you try and shade the truth, or you lie, and they have information or a witness that will show you have lied, now you have reason to fear. Now, you have weakened your case, perhaps even destroyed it...all because you tried to hide the truth and the lawyer caught you in a lie. Your credibility is now in question with the judge and/or a jury. Realize that while the facts might hurt your case, it is unlikely they will destroy your case, so quit worrying about it. But, even if you are a defendant in a case and you have facts that are really bad, again, it is your lawyer’s job to mitigate those bad facts, not yours.  Don’t even try (unless your attorney has prepared you to respond to such facts, then of course, you should do as you’re instructed). It is when persons being deposed lie, or try and manipulate the truth that they get into trouble and things then get very tense. Your attorney will usually have already gone over those “bad” issues with you prior to the deposition.  You have to look at some facts in a “what is, is” fashion. You’re just not going to be able to hide the “elephant in the room,” so usually, the best policy is, don’t even try.

Final Thoughts. Most depositions are pretty low-key. The lawyer will usually be soft-spoken, courteous, and will want you to be relaxed and comfortable. His job is to extract information from you, to see what you know, and what you do not know, and to determine the facts as you know them. Now, there are other purposes for a deposition (such as to see what kind of a witness and trial you will make), but all in all, it is a rather boring, sometimes tedious process. If you go into a deposition with the attitude that you are going to treat those lawyers like they were people you had invited into your home, and they were asking you questions about your favorite subject, you will do fine. Remember, they are  people, just like you. They want to know what you know, and what you do not know. They want to know who the witnesses are going to be, what the relationship is between you and the witnesses, if any. They want to know what your damages are, or if you are a defendant, they are going to want to know why you did what you did, why you did not do what you did not do.

The Deposition Setting

Most depositions are free of drama, though I once saw an attorney who is now a federal judge, climb up on top of the table, objecting to some rather underhanded tactics by one of the other lawyers in the case. But, that is rare. You will go in, sit down at the head of a table, and the court reporter who will be near you, will swear you in, and then the attorney will introduce himself or herself, and will begin asking questions. Your attorney will be seated near you, and if the other attorney breaks the rules by asking misleading questions, or misstating the facts, or doing anything else wrong, then your attorney is there to put a stop to it. Usually, that is done by an objection. You do not have to do anything but sit there and be silent and wait until the lawyers finish their little skirmish about the rules. Then, your attorney will either instruct you to answer the question, or will instruct you do not answer the question, or the other attorney will simply withdraw the question and move on.

You should approach your deposition relaxed. It is not the end of the world. And even if you do poorly, life goes on and you will survive this, as many tens of thousands before you have survived. You’ll walk out the door seeing a brighter future than when you went inside.















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