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