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January 21, 2004
Lawsuit: Preparing for your deposition
Chief Ronald Richards

Graphic by John Pritchett 
Most of us shutter at words like, lawsuit, deposition, litigation, testimony. Why? Because they are terms associated with our legal system and we all fear what we don't understand.

Any one can be named in a lawsuit. The longer you are in a business, in our case, the emergency services' field and the higher you get in the food chain, the better your chances are that you will have an encounter with our legal system.

Our society is sue happy! Some of the litigation is driven by lawyers. Some is driven by insurance companies. Regardless who or what is the driving force, you, your officers, your organization,  and your municipal officials may be a party to a lawsuit. Most often, the plaintiff, the person or party suing, will name many in the lawsuit. Sometimes this is referred to as the "deep pockets" theory. "Sue 'em all........"

Why me?
Once you get over the initial shock of being served a lawsuit, your next step should be to get in touch with your organization's solicitor, lawyer or counsel (all the same term for the guy or gal who will represent you in court).

From this point forward your attorney will direct you. He may ask you for some specific information about the incident or he may ask for some supporting documents.... possibly records, incident reports or other files that will be helpful in your defense. Needless to say, those reports, memos, email, procedures or other pieces of paper will become very valuable to your defense.

What's next?
You may be requested to answer specific questions know as interrogatories.

As the case proceeds, both lawyers will do their "wheeling and dealing". If you are the defendant, then your attorney will attempt to have the case dismissed or possibility have some of the defendants named in the suit dismissed. If you are not so lucky to be dismissed from the suit, then you may progress to the next step which may be a declaration. The declaration is basically a series of statements that your attorney will prepare and ask you to sign. Remember, every step of the way, what ever you say or do becomes part of the record, so tell the truth!

Get ready for the deposition
If a settlement looks like it will not be reached short of a trial, then the next thing that you may face will be a deposition. The deposition enables opposing counsel to examine witness under conditions less formal, but no less important. You should be cautioned against perceptions of informality. The following are general rules and suggestions to follow during your deposition. They are not designed to cause you anxiety, but to prevent anxiety. Depositions, like most of life's endeavors, are easier if you understand the rules before you start the game.
Besides obtaining information for use at trial, your deposition is an opportunity for the opposing counsel to evaluate what kind of witness you will be at trial. The better the impression you make in this respect, the more likely the case may be settled on favorable terms. Therefore, dress appropriately, speak clearly, look at the opposing counsel when you answer her questions, don't fidget, and remain calm.

Review any important documents you might be questioned about before the deposition. You should have discussed these documents with your attorney well in advance of your deposition. However, don't bring any documents to the deposition unless you have discussed them with your attorney and he has specifically instructed you to bring them. If the opposing attorney wants to ask you questions about documents that were produced during discovery, it is his job to bring those documents to the deposition. Your job is to cooperate as required by law, not to go out of your way to help the opposing attorney.

Listen to the directions the opposing attorney gives you at the start of your deposition. One of the most important of these is if you want to confer with your attorney before you answer a question, you may do so.

Don't anticipate the opposing attorney's questions. Attorneys usually formulate their next question during a deposition based on your answer to the last question. When you provide an answer based on what you think the next question is going to be, you are doing the opposing attorney's job for her, and possibly opening up lines of questioning she would not have thought of but for your answer.

Don't answer every question as soon as the opposing attorney has finished asking it. Wait a second or two before answering. There are two important reasons to take a short pause. One, it gives you a moment to think about your answer in light of all of the instructions which follow. Two, it gives your attorney a chance to object to the question if there is a legitimate reason to do so. If the question is objectionable, but you've answered it before your attorney has had an opportunity to make the objection, not only is the objection to that question too late, your answer may again lead to other questions which the opposing attorney would not have thought of but for your response.

Answer each question with the information necessary to provide a truthful response. Beyond that, do not volunteer any additional information. If you can answer the question by simply saying “yes” or “no”, do so. What you don't say seldom comes back to haunt you.
Don’t try to give a detailed explanation to an answer just because you think the short answer sounds bad. The short answer rarely sounds as bad to anyone else in the room as it does to you. If the opposing attorney wants more information, he will ask you another question, which will allow you to provide another short specific response instead of a long general answer.

Additionally, if the opposing attorney does not follow-up on the question, your attorney should already know what your explanation is, and if she thinks the answer needs further clarification, she can ask you the appropriate follow-up questions on cross-examination. Or, she may make the strategic decision to wait and ask you for an explanation at the time of trial. If the question is something completely out of left field that you never discussed with your attorney (and this does occasionally happen), that's all the more reason not to explain. You can always discuss the issue after the deposition and be ready to explain your answer at trial.

The Long Silence
A common tactic the opposing attorney may use to get you to say more than you have to is “the long silence”. In “the long silence” strategy, the opposing attorney asks you a question, you answer, and then he sits quietly and looks at you for several seconds (which will seem like a much longer time period to you). Most people have a natural inclination in this situation to fill in the silence by adding to their answer. The opposing attorney is relying on this inclination. Fight this inclination. Patience is a virtue. After a short time, the silence actually becomes more uncomfortable for him than it is for you.

Never get into an argument with the opposing attorney during your deposition.  This is an argument you cannot win. Most attorneys will not try to start an argument with you because they know they'll find out more if they put you at ease. Some attorneys, however, prefer an “in-your-face” confrontational style. If the opposing attorney tries to start an argument don't fall into this trap. Arguing with him is your attorney’s job, not yours. If your attorney does not respond in kind it does not mean he is not doing his job or that he is intimidated by the other attorney. It means, like any good tactician, he has decided to wait and fight the battle at a time and place of his choosing, not his opponent’s choosing.

Don’t make any guesses as to what the question is. If you don’t understand the question, or you’re not sure what the opposing attorney is asking for, or you’re not sure you even heard the question correctly, say so and ask him to repeat or rephrase the question.
Don’t make any guesses as to what the answer to a question is. If you don’t know or don’t remember, “I don’t know” or “I don’t remember” are not just acceptable answers, they are the best answers. In most cases the incident that is the basis for the law suit that requires your deposition happened months, if not years, prior to your deposition. Although the opposing attorney may try to convince you that you should remember every detail, nobody really expects you to be honestly able to do so. If you guess and you later realize you guessed wrong, when you try to correct it at the the trial the opposing attorney will use your deposition testimony to raise questions to the jury as to your credibility. If you don’t know or don’t remember at the time of your deposition and you say so, when you later learn of some fact or remember it, you can explain how this happened at trial without the opposing attorney being able to imply that you were either lying at your deposition or at the trial or both.

The opposing attorney may try to refresh your memory by telling you what someone who was previously deposed said about some issue in the case. If your attorney doesn’t object to the question, you can feel confident that the person said what the attorney is telling you she said. That does not mean you have to accept that person’s version. If it does jog your memory, fine. If it doesn’t jog your memory, answer accordingly

It's possible an opposing attorney will ask a deponent a question which triggers a memory of something the deponent had completely forgotten and had failed to discuss with her attorney. If this happens to you, ask to take a break. The opposing attorney will, or should, tell you in the instructions he gives you when the deposition begins that if you would like to take a break at any time all you have to do is say so. Take advantage of this.

Don’t be reluctant to ask for a break for reasons of personal comfort. Your sole job during the deposition is to concentrate on the questions you are asked and the answers you are giving. Avoid distractions. If you need a drink of water, or want to use a rest room, or would just like to get up and stretch for five minutes, tell your attorney that you would like to take a short break. 

Remember, the information you disclose during the deposition can later be used in the trial, so always tell the truth. Finally, never get involved in "off the record" conversations.

Related: You don't even have to try hard to get sued 
About the author: Chief Ronald Richards has over 28 years of fire service experience, both career and volunteer. He rose through the ranks in the Forest City Fire Department, in Forest City, PA and became Fire Chief in 1995 holding that position through 2000 when he retired. He currently serves as the Chief for Training and Safety for Browndale Fire Company in Wayne County, PA. Chief Richards has over 24 years of service with the Commonwealth of Pennsylvania, having served as a Fire Marshal with the Department of Public Welfare, a Fire and Safety Specialist with the Pennsylvania Department of Corrections. Currently, he is Superintendent Assistant  within the PA Department of Corrections, responsible for media relations, litigation coordination, accreditation, and the writing of policies and procedures. Chief Richards graduated from the State University of New York with a Bachelor of Science Degree in Fire Service Administration.  Richards is a PA State Fire Instructor and an instructor with Command School.  He is the founder of 
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