5 Tips for the Subpoenaed & a Music Video
A deposition can be a traumatic experience. Depositions are a tool used by the parties to gather oral evidence during the discovery process. Not only could the process of being deposed be excruciating, but it could also be expensive.
If you have a looming deposition, it is probably not a great time to “party like it’s 1999.” Instead, it is time to gather your thoughts and make a plan. “Uncle Ed, you have me a bit scared. I understand depositions are serious business that could profoundly impact my case, so what should I do?”
Fortunately, I have some time-tested tips that have helped my clients navigate the uncertain waters of being deposed:
- Expect to answer difficult questions. You may dislike a question and not want to answer. Unfortunately, getting out of answering is rare. You must answer the question unless your attorney explicitly instructs you not to answer it. Instructions not to answer are rare and only occur if your attorney asserts a privilege or privacy. You and your lawyer should review key documents that will likely be presented to you. You will benefit from practicing how to answer difficult questions about the case while being recorded.
- Pace yourself. When opposing counsel asks you a question, it is essential to remain composed and take a brief pause before answering. That pause gives your attorney the time to object to the question and allows you to structure a concise response.
- An objection is not a tip-off. As we have all seen on TV, judges rule on objections during trial. If the judge sustains the objection, the witness is not required to answer. In a deposition, however, your lawyer may object, but no judge is present to rule on the objection. Your lawyer is merely objecting for the record. This act preserves it for the judge to rule on at trial. Expect to hear lots of objections, don’t try and construe messages from the objections. If you need clarification on a question, then ask.
- Simple is better. Telling the truth in a very concise manner is essential for damage control. Remember, you are only answering what is in your personal knowledge. You are not required to speculate or guess, so do not do it. It is common to assume that one must answer all questions correctly. This assumption is not true. Testifying that you do not know or cannot recall is an answer. It is also common to fall prey to your discomfort, resorting to “I don’t know” or “I don’t remember.” These commonalities in unsuspecting witnesses may give the other party ammo to impeach you at trial or lessen your credibility. Answer only the question, and then stop talking. Opposing counsel loves a “talker,” and they look forward to you handing them additional evidence to bolster their case.
- Be aware of how you are presenting yourself. What you communicate verbally and nonverbally must be in alignment, or no one will hear what you say. Some people make a career out of training witnesses how to speak and appear. Imagine the jury, opposing counsel, and the judge watching your deposition or watching you at trial; this could go on for minutes or hours. You want the jury to see you as credible, calm, and congenial. In the first few seconds a person sees you, they make hundreds of unconscious judgments about you- are you intelligent, honest, trustworthy, and approachable? Body language, and tone of voice, make up about 90% of our communication. Record and review your mock deposition. Nervousness makes people do funny things, such as constantly fidgeting or scratching. Any jury viewing the deposition recording will be distracted by these behaviors, and the vital testimony may go unheard.
Even the best-prepared witness will encounter unanticipated questions and exhibit some questionable behavior. Being deposed may be uncomfortable, but with a structured approach, and the proper legal counsel, you can make it a more bearable experience.
I leave you with this: try your best to avoid legal disputes. The Book on Restoration Collections guides you through communications with your customer and adjuster. It breaks down important provisions in a restoration contract, plus things to consider when deciding whether to litigate.
Ready for more tips? Check out the C&R Magazine article: How To NOT Get Roasted In A Deposition.