Five Step Deposition Primer
Few things in life are more nerve racking than being deposed, so anyone who tells you not to be nervous at a deposition, has likely never personally sat in the proverbial hot seat.
"Of course you're going to be nervous," says YC Partner, Cristina Ciminelli, "but the trick is to not let your nerves get the better of you."
YC attorneys know how high the litigation stakes are at a deposition, which is why we never let our clients sit for one until we are sure they are as ready as they can possibly be.
"It may be true that a case is never won at a deposition, but it can certainly be lost there," adds Ciminelli. "We do everything in our power to make sure our clients are still standing strong when the court reporter types her final word."
At YC, attorneys design "custom prep" sessions for our clients, outlining questions we anticipate the other side will ask. Those outlines are based upon the unique facts of each case, along with our knowledge of and experience with opposing counsel. And while each deposition is different, there are some tricks of the trade that apply to every deposition. Master these, and your deposition will be topped off with a celebratory glass of Chardonnay.
1. Go the Way of the Boy Scout: Be Prepared
"Being prepared for a deposition means more than getting a good night's sleep, though that's important too," says Ciminelli. "Even more important is reading and re-reading every document that can come back to haunt you. And when you are satisfied that you know all those documents by heart, read them again."
Understand that opposing counsel will do their very best to catch you in a contradiction. If you've said something before--whether in a declaration, a report or another deposition--know what you have said and be prepared for counsel to confront you with it. Saying something harmful in the past is rarely fatal to your case, but looking guilty when you're confronted with it may be.
2. Wear Your Game Face
Young broadcasters are often taught a technique called, "Acting 'as if.'" As scared and nervous as they may be on the inside, they need to portray an exterior of confidence and credibility. At a deposition, you do too. So before a deposition, ask yourself, "What does a confident person look like? What does a credible person sound like?" And then be prepared to "act as if" you possess those traits (even if you don't). Sit up straight, speak clearly and make eye contact with the person asking you questions. Remember--the deposition is a dress rehearsal for trial. Opposing counsel is certainly going to be gauging your effectiveness as a witness. Perform well enough at the deposition and he may rethink the need for trial.
3. Forget Everything You Know About Friendly Conversation
Make no mistake--a deposition is not a conversation, and you have no obligation (and no incentive) to fill any awkward silences.
"The goal at a deposition is to say as little as possible," according to Ciminelli. "Listen carefully and only answer the question to the extent that you have to."
If you are asked at a deposition whether you know what time it is, and you respond by saying "noon," you just gave the wrong answer. When asked a "yes/no question," there are only three correct responses:
c. I don't know
Never offer more than the question demands, even if you think it is helpful to your case. The more you say at your deposition, the more you will be held to later.
4. Take the High Road
If there's going to be a jerk in the room, let it be the opposing counsel. You be the good guy, no matter how much he might push your buttons.
"It's not uncommon for an attorney to go into a deposition with the goal of making the deponent angry. If you play into his hand, you'll pay for it later," says Ciminelli.
Oftentimes, depositions are video recorded and those recordings can be played for a jury. That is a fact you simply cannot lose sight of. If a jury sees you as angry and hostile, they may not like you. If they don't like you, they're more willing to believe bad things about you. In this case, nice guys really do finish first.
5. Honesty: There's a Reason It's The Best Policy
What you say in a deposition is sworn testimony under oath. If you fail to tell the truth at a deposition, rest assured that the jury will find out about it.
"You can make a hundred truthful statements. But lie once, and the lie is what the jury will remember," says Ciminelli.
Jurors are much more likely to forgive someone for making a mistake or an error in judgment than they are to forgive someone for lying to them. No case is perfect and no witness is expected to be perfect either.
"The facts are the facts, and it's our job as your attorneys to work with the facts we've got," says Ciminelli.
Labels: Five Step Deposition Primer, YC Blog, Yukevich | Cavanaugh
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