ACHRNEWS

Called to Depose in a Lawsuit? Here Are 10 Tips You Need to Know

October 20, 2008
Richard D. Alaniz

It’s the type of phone call no manager wants to get - there has been an accident at a work site that involves someone else. Even if no one is seriously injured, that may not be the end of the bad news. In such cases, a lawsuit can often follow, and you may be called to give a deposition and possibly testify in court.

The deposition is usually the first step in what can be a nerve-wracking journey though the legal system. When you are deposed, you will be brought into a room with attorneys from both sides, sworn in, and a court reporter will record every word you say as you are grilled by lawyers. You will be asked to recall minute details regarding an incident that might have happened months ago. For many, this is a new, and often unwelcome, experience. But with the right preparation, you can sail through the process and help encourage a positive outcome for your company.

If you should ever be deposed, here are 10 tips to remember.

Tip #1. Become Familiar With the Process.
If your experience with the legal system consists of watching reruns of “Law & Order,” this is a good time to become familiar with how things actually work. It’s important to understand exactly what a deposition is, and the role it plays in lawsuits. A deposition is part of the “discovery process,” where two parties involved in litigation gather information in order to prepare for a trial.

Typically, your deposition will be taken in a conference room, not in a courtroom. You will take an oath about the accuracy of your testimony, and all the proceedings will be transcribed by a court stenographer and, if requested by one of the parties, recorded on video.

Your company’s attorneys can help educate you about depositions, providing you with information and guidelines on what to expect throughout the process.

Tip #2. Do Your Homework.
Before you give your deposition, you are entitled to review all of the pleadings in the case, including the complaint (the document that initiates a civil lawsuit) and the answer (your company’s first response to the lawsuit), to find out the basis of the litigation. You are also entitled to know what other witnesses and experts have said. This can help you get a more complete picture of the lawsuit, and it can also help you understand the attorneys’ strategies and the motives behind certain questions.

While you should prepare ahead of time, don’t over-rehearse. Canned answers often sound unconvincing. And if you memorize responses ahead of time, you may get rattled when an attorney from the other side asks you an unexpected question.

Tip #3. Think Before You Speak.
Don’t interrupt the attorney - let him or her finish completely before you answer, and listen carefully to make sure that you fully understand the question. If you don’t, then say so. You may want to consider having the question repeated. In short, give yourself time to think before answering. While many people tend to babble when they are nervous, don’t worry about what may seem like uncomfortable pauses. Be sure to give a verbal answer to each question; nods and head shakes can’t be recorded, and you will be asked to answer the question out loud.

Pausing before answering questions also allows the attorney for your side to object if he or she feels it is necessary. Once a lawyer has objected, stop talking immediately until you receive instructions on how to proceed.

Tip #4. If You Don’t Know or Don’t Remember, Admit It.
Of course, you want to come across in your deposition as the knowledgeable professional that you are, with a strong grasp of all the details of your operations. However, there is nothing wrong with admitting that you don’t remember or don’t know the answer to a question. Remember, you are under oath, and the rules for perjury apply to depositions. It is better to be honest and admit your ignorance than to misspeak. If you later answer differently at trial, it could reflect on your credibility.

Tip #5. Answer the Question That Is Asked.
You may think you know where an attorney is headed with a line of questioning, but resist the urge to jump ahead and answer a question that hasn’t been asked. Don’t overanalyze the question either, or you can tie yourself up in knots trying to stay one step ahead.

Tip #6. Keep It Simple.
The best answers to any questions are usually yes or no; while you may not get many yes-or-no questions, try to keep your answers as short as possible. Don’t over-elaborate or attempt to add in detail that isn’t necessary to answer the question that has been asked. At the same time, you have the right to answer questions fully and completely; don’t allow yourself to be too intimidated to interrupt an attorney who hasn’t let you speak your piece. Generally, your attorney will assure that you are permitted to answer fully.

Tip #7. Maintain a Calm, Professional Demeanor.
The other side’s attorney may try to rattle you. Try not to let that happen. Don’t be cute or flippant, and most importantly, don’t get angry and don’t argue. Always keep in mind that, no matter the type or tone of the question, this is business - it’s not personal.

Maintain an attitude that is calm, professional, and dignified. By doing so, you will only help the company’s case by showing the caliber of people that they hire.

Tip #8. Don’t Argue With the Attorneys.
You may have been on the debate team in high school, and you may be able to convince your employees and supervisors why your position in a disagreement is the correct one. But, that doesn’t begin to prepare you to take on an attorney in a war of words. Lawyers have spent years in school and on the job learning how to argue. Debating with an attorney will generally diminish your testimony and may be just what the attorney is trying to achieve.

Tip #9. Take a Break.
While similar in some ways to trial testimony, a deposition differs in several important ways. One of those ways is in the ability to take a break when you get tired or overwhelmed. As long as there are no outstanding questions that you haven’t answered, it’s perfectly appropriate to ask for a few minutes of downtime.

A short break can allow you to stretch your legs, clear your head, and collect your thoughts. You can also use the time to consult with your attorney about how the deposition is going, and make any adjustments in your tone or approach to questions.

Tip #10. You Can Rephrase Some Answers Later.
In a deposition, you are allowed some “take-backs”- if you realize you have made a mistake or answered a question in a way that could leave your response open to misinterpretation, it can be amended before the deposition becomes final. If possible, this should be done before the deposition ends. Generally, you will have a chance to review the transcript within several weeks of the deposition. Be sure to read it and sign it before it is entered into discovery. While most court stenographers are extremely accurate, this will also allow you to make sure there are no typographical errors.

Discovery has several purposes. It is designed to level the playing field and allow each side to get a preview of available evidence before a trial starts. Giving a deposition also allows you an opportunity to refresh your memory. Court cases can take years, and depositions can be useful reminders if you do ultimately have to testify in court.

Depositions can also help both sides gauge the strengths and weaknesses of each other’s cases, and many cases settle between deposition and trial. No matter how intimidating or uncomfortable the process may be, if you give forthright answers in a professional manner during your deposition, it may help encourage the other side to settle - sparing you the obligation of testifying in open court.

Publication date: 10/20/2008