Tips for surviving your deposition in employment-related litigation
Friday, December 06, 2019
If you are a human resources professional, chances are that you will have the “opportunity” to be deposed in some form of litigation during your career. Depositions are where attorneys for the parties to the litigation get to ask questions of witnesses “on the record.”
Testimony is then typed up in a nice, neat transcript that the attorneys use as part of the evidence to help them prevail in the litigation. This article contains some practical tips on how to conduct yourself if you are ever called upon to be deposed.
1. You Cannot Prepare Too Much
The attorney for your employer (or your own if you are sued individually) will definitely need to meet with you well in advance of your deposition. Prior to that meeting, you should carefully review all the documents or other evidence that has been produced about which you have knowledge.
The attorney should go over the facts of the case, the lines of questioning and even the legal arguments that you may reasonably expect.
You do not need to be a legal expert and you are certainly not expected to argue any legal theories, but it is helpful to be generally acquainted with the overall legal strategy. After all, as much as we would like it, the attorney is not likely to be able to anticipate or prepare you for every single question that you may be asked.
Most attorneys have helpful handouts or even videos that they show you to get you comfortable with the process. Review these aids several times and pay close attention to them. Do your best to assimilate the advice from them when you are under oath and responding to questions.
It is helpful for the attorney to do a mock examination with you where he or she plays the role of the attorney who will be deposing you. They will ask you the questions they expect you to be asked and help you formulate precise answers without rambling or introducing facts that are not yet in the record. They can point out ways to improve your testimony or approach and help you practice being an effective deponent.
Through the mock examination exercise, you can learn how different lawyers try to rattle you. Some are yellers and others take a more “stealth” approach. Sometimes the quiet ones can actually be the sneakiest and most effective for the other side, because your guard may not be up with that personality type the same way it is if the attorney is yelling at you or in your face.
Some lawyers even take their witnesses to the courthouse. At a minimum, the attorney should brief you on the physical surroundings where you will be deposed. Again, the idea here is to make you as much at ease with the situation and process as can be possible under the circumstances.
Probably the biggest mistake that employers and their counsel make is not spending enough time on the preparation for important depositions. The consequences of not being prepared can be catastrophic for your side of the case.
2. Stay Calm and Composed
Even people who have been previously deposed get nervous and anxious when they are being deposed. The uncertainty of the questions and the fact that your words are being transcribed right in front of you can be unnerving.
You need to do your best to remain as calm and composed as possible. Breath slowly and pause between the question and your answer. Remember that in a normal deposition, one that is not on video, the transcript will not reflect the time you took between answers to formulate your answer.
Be confident in your preparation and just tell the truth as you know it. Lastly, the attorney on the other side will find creative ways to shake your confidence or to get you to lose your cool. If you feel you are under siege, ask for a “comfort break” and try to regain your composure.
3. Be Direct and To the Point
Most attorneys will usually start by telling you to “tell the truth,” but you should only respond to the literal question you are asked. Give direct and simple answers and do not volunteer anything more than information that is directly responsive to the question you are asked.
In a deposition, the less you say, the better. After the deposition your attorney has ways to introduce additional testimony through a well-phrased affidavit or other evidence.
While there is no precise rule or standard, answers of one or two sentences or 10-15 words should be sufficient to respond to any question. If you don’t supply enough information or your reply is too short, it is incumbent on the attorney deposing you to follow up and ask additional questions. Plus, the more you say, the more it opens you up to even more questions from the attorney deposing you.
4. If the Deposition Is by Video, Plan Accordingly
In our modern world, more attorneys want to take video depositions. They will then try to use the video or clips from it to show to the judge or jury.
If the deposition is video-recorded, think about what the judge or jury will see: how will you dress? How will your body language or facial expressions look? Did you look straight at the camera as if you were testifying in person or were your eyes “shifty?” Did you fidget or appear unduly nervous? Did you speak audibly so you could be clearly understood? Did you look serious?
5. Your Deposition Is Probably Not Where You Should Try to Win Your Case — But You Can Lose It There
Make sure that you have a strong command of the facts. Tell the truth, because the worst thing you can do is to be proven to be a liar or to lack credibility.
Do not be misled into guessing, speculating or giving information about which you do not have firsthand knowledge.
If you truly do not know or cannot recall, say so. But, make sure that the attorney on the other side cannot prove you really did know the answer and were trying to be deceptive.
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