By: Craig Watrous
Depositions are often a vital and pivotal part of litigation. A good (or bad) deposition has the ability to sway the case one way or another. Can a deposition win (or lose) a case? Maybe. If bad enough, a deposition can certainly expedite the settlement process. Keep in mind that depositions are taken under oath. Everything that the deponent says is being recorded by the court reporter and in some cases, by video as well. Inevitably, depositions will be reviewed in detail by your attorney and the attorneys for the other side. The transcript (and video) of your deposition can be used during trial. While some of the items in this list may seem obvious or even come across as tongue-in-cheek, we’ve seen them happen. People get nervous, tired, frustrated, scared and bored in their depositions. Attorneys know this and they’ll use it to their and their client’s advantage. Here are 10, in no particular order, things not to do in your deposition. Enjoy.
A good attorney can always deal with the truth, even if it’s bad. Lying almost always catches up with you down the road. Even a small lie can be made into a big deal at trial. Remember what Mark Twain said: “If you tell the truth, you don't have to remember anything.”
2. Begin an answer with “Well to be honest with you…”.
Are you implying that your other answers weren’t honest?
3. Guess and speculate.
If you aren’t sure of an answer to the attorney’s question, say so. If you’re asked to guess, make sure you make it clear that you are guessing.
4. Engage in casual conversations with the court reporter and other people present in the depositions.
Operate under the belief that everything you are saying is being recorded. You’d be amazed what the other side can learn from casual conversations that take place “off the record”.
5. Volunteer information.
Depositions are long. They are often boring. They can be awkward and they’re stressful. Don’t answer more than what is asked. Don’t speak to fill the silence. If you weren’t asked about something, don’t volunteer it. Make the other attorney ask good questions and earn his hourly fee. There’s no benefit to be gained by doing his job for him.
6. Don’t review documents carefully.
If you are presented with a document in your deposition, don’t presume that it’s accurate. Do you know where it came from? Do you know who prepared it? Do you recognize it? Be sure about it before you acknowledge the accuracy of a document that the opposing attorney has just handed you, you have no reason to trust him.
7. Lose your temper.
Anger gets people to say outrageous things. You’re being recorded. Act appropriately and don’t be baited by the other attorney. Stay calm, stay cool.
8. Don’t take breaks.
7 hours. Your deposition could last for 7 hours. That’s a long time. Not taking breaks isn’t going to make that deposition go any faster but it’s sure to wear you out.
9. Joke with the other attorney.
She isn’t your friend. She isn’t there to be nice. Jokes don’t come out well in a written transcript and can be taken out of context and used against you in trial.
10. Answer questions you don’t understand.
Clarify anything and everything you don’t understand. If that last question wasn’t crystal clear, ask the attorney to repeat it or explain it before you answer.
(Mallon Lonnquist Morris & Watrous, PLLC, is a civil litigation law firm. Craig T. Watrous is a Colorado litigator and partner at MLMW, based in Denver, Colorado. Craig is licensed to practice in Colorado state and federal courts and regularly represents clients on both sides of disputes, plaintiffs and defendants. Craig can be reached at firstname.lastname@example.org.)