D+AS MAGAZINE

LEGAL — How to Survive a Deposition

© 2006 Door & Access Systems
Publish Date: Winter 2006
Author: Naomi Angel
Page 82


How to Survive a Deposition
By Naomi Angel, DASMA Legal Counsel

Members of the door and access systems industry, as in many industries, are occasionally called to testify in legal cases. A deposition is such a testimony, but it is given during the discovery process, out of court, under oath, and is recorded for later use in court.

You may be called to testify for many reasons, but usually because of a dispute with an employee, a customer, a vendor, or even a neighbor. Whatever the cause, a deposition is a time for you to choose and use your words carefully. The following tips may save you much frustration, time, and expense.

1. Make Sure You Understand the Question.

Never answer a question unless you fully understand it. It’s up to the examiner to frame intelligible, unambiguous questions. If the attorney can’t do it, don’t help.

Some attorneys may ask long or convoluted questions that are confusing. You may be tempted to answer with some general response, but don’t do it. Just say that you don’t understand the question.

If something interferes with your ability to hear the question, ask that the full question be repeated. Don’t be overly technical or picky, but you have every right to ask for clarification of a question at any time.

2. Pause and Think Before Answering.

In ordinary conversation, we often answer quickly and cut one another off. But in a deposition, listen to every last word of the question. Then, pause and think about the question before you answer.

You would be wise to make this a habit. It permits you, rather than the other attorney, to dictate the tempo of the deposition.

3. Never Volunteer Information.

In a lawsuit, more damage is done by a “helpful” witness than by any other source. We all like to be helpful, but when testifying, it’s unwise to volunteer more information that you’re asked.

For example, if you are asked if you know what time it is, you would normally say, “ten o’clock.” But in a deposition, just say, “Yes” or “No.” Let the attorney follow up with, “What time is it?”

Generally, keep your answers short and to the point. Remember that every word is a target for the attorney.

4. If You Don’t Remember, Say So.

A deposition is not a test. You don’t get credit for guessing. If you don’t remember the facts that would answer a particular question, just say, “I don’t remember.”

If you are not absolutely certain about your answer, qualify your answer with something like, “To the best of my recollection right now …”

5. Do Not Guess.

If you don’t know an answer to a question, say so. “I don’t know” is a full, complete, and acceptable deposition answer.

Witnesses often fall into the trap of feeling that they “should know the answer” to a question. They then conceal their lack of knowledge by guessing. However, everyone knows that your knowledge or memory has limits.

6. Don’t Fall for the Silent Treatment.

After you answer a question, the opposing attorney may silently stare at you or make a gesture (tilted head, raised eyebrows, a look of disbelief, etc.). The attorney hopes this will make you uncomfortable and compel you to fill the silence.

Don’t fall for it. After you answer, stop and wait for the next question. The silence is the lawyer’s problem, not yours.

7. Stick to Your Answers.

Some lawyers will ask the same question in different ways. This tactic may indicate that the attorney doesn’t like your answer and is trying to get a different answer by changing the form of the question. Or, it’s possible that the attorney likes your answer and wants to see if you will contradict yourself with a different response.

If the attorney keeps coming back to the same question, don’t assume that you are answering improperly. If you gave the facts right the first time, stick to your answer.

8. Always Read the Fine Print.

Since documents are often the central evidence in a lawsuit, lawyers can ask you detailed questions about documents. Don’t answer such questions unless the document being reviewed is in front of you, and you’ve had the chance to read it before you answer.

Don’t let the lawyers put words in your mouth. Always check to see whether the document says what the lawyer says it says.

This article is provided solely for informational purposes and does not constitute legal advice. If you have specific questions or concerns about a legal issue, consult your company’s legal counsel for guidance.