5 Simple Deposition Tips

At Hearn & Fleener, we take our fair share of depositions. Often the people our attorneys depose are industry professionals who have years of experience in the legal world and note on their curriculum vitaes the numerous hours spent giving their expert testimony.

We recognize that most homeowners and community managers have never been deposed in their lives. If you have been called to give a deposition, here’s a simple guide of what to expect and how to get through it.

First, it’s important to understand that depositions are part of the discovery process in a legal proceeding. Any person who may have relevant information about the matter at issue may potentially be deposed.

In its most basic format, a deposition will occur in a conference room and include the witness, attorneys from both sides and a court reporter. You, the witness, will take an oath about the accuracy of your testimony. Then attorneys from the other side will ask a series of questions and an attorney from your side will support you by objecting to improper questions, calling for breaks and offering appropriate guidance. The deposition will be transcribed and, after you review it for accuracy, a written copy will be provided to all parties in the case. If the matter goes to trial, attorneys may make references to information provided in your deposition.

So what do you need to know? How can you get through the process effectively without any major blunders? Here are Hearn & Fleener’s five best tips for being deposed:

1. Be polite and professional
2. Keep it simple, only answer the question asked
3. Be familiar with the facts
4. Do not guess - admit that you do not know or cannot recall
5. Trust your attorney

1.  Be Polite and Professional

The deposition process will be the first opportunity for the opposing side to meet you. You do not want to give them any reason to question your credibility so it is always advisable to dress professionally, but comfortably, and to keep your manner calm and polite.

We’re the first to admit: some attorneys have a way of irritating people. By reminding yourself often to stay calm and polite, you will be less likely to be frustrated into saying something you may regret later.

2.  Keep it Simple

Many questions asked of you during a deposition can be answered with a few words or a simple “yes” or “no” or “I don’t recall.” It goes against most peoples’ nature to do this as it feels impolite or unhelpful, but by answering only the question asked, the deposition goes more quickly and the fewer follow-up questions the attorney will ask.

People being deposed often seek to answer the questions they think an attorney is asking and in doing so, fail to answer the question the attorney actually asked. It is helpful to take a moment after each question to be sure you understood the question and give the simplest answer you can. Even as simple as “Yes” or “No.” This is not your opportunity to tell “your side of the story.” Rather, this is the other side’s opportunity to try to obtain information that will hurt your claim. Voluntarily giving them extra information may hand them what they are looking for.

3.  Be Familiar With the Facts

Lots of people feel that they should study up before a deposition like they might before an exam. With a few exceptions, this is not required. The information you have is the only information being sought in the deposition. The attorneys taking your deposition will pursue all the avenues available for information they need. Your job is to provide your personal snapshot and nothing more.

4. Admit if You do not Know

It is completely okay and even encouraged for witnesses to say, “I do not know” or “I cannot recall.” A great example is a question like, “When did you first know about X problem?” A typical person might be inclined to answer, “I think it was in May of 2012.” However, if the person doesn’t specifically know, they should simply state that they don’t know specifically. It may feel absurd to say you don’t remember, but the actual truth of the matter is that you likely do not recall the actual specific dates or amounts you are being asked for. Keep your answers honest and tight.

Attorneys are taught from the beginning of their schooling that they should not ask questions to which they do not know the answer. If you give them more or different information than they anticipate, you could inadvertently open a can of worms that may damage your case.

5.  Trust Your Attorney

Any time someone is sitting for a deposition, there will be an attorney present to defend them. This attorney will object if questions are improper, ask for breaks if you seem flustered and generally help you stay on track. Trust your attorney to assist you as much as possible.

A good way to assist your attorney in return is to wait one breath after each question is asked. This pause will allow the attorney helping you to insert any objections he or she may have. As a bonus, taking the pause gives you a moment to think about the answer you will give. Simplify!

Our final thoughts on being deposed are these: you cannot win your case during a deposition, but you can lose it. By appearing unprofessional or temperamental you may inspire opposing counsel to call you as a witness if the case goes to jury trial. By giving too much and/or incorrect information, you may cause real damage to your case and increase how much time your deposition takes.

Make it easy on yourself. Dress professionally, but comfortably, and keep your answers simple, polite and honest. Your depo will be a piece of cake!