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Six Rules for a Killer Deposition

Time for your deposition?  Wondering how to be a great witness?  Here’s how.

Depositions are critical to any case, and a good deposition goes a long way toward getting a good result.

It is often said that you can’t win your case in deposition, but you can lose it.

Like anything else, there are rules, and you can learn to do this well.  Here are the steps:

  1.  Prepare like crazy.  No one expects you to remember everything, but of course, you are less likely to make a mistake if you have reviewed everything you can, and it is all fresh in your mind.  Don’t forget, however, that the other side can ask you for a copy of anything you reviewed.
  2. Don’t try to be convincing.  Just answer the question as simply as you can.  When you add more to your answer than is necessary, you give the questioning lawyer something more to ask about.  Depositions are supposed to be a “fishing expedition”.  Don’t volunteer information unnecessarily.  A famous jury consultant advises that if someone asks you in a deposition if you know what time it is, the correct answer is “yes”.  Let them work to find out how you know the time.  Let them ask what the time actually is. If nothing else, it breaks their rhythm.
  3. Don’t make up definite answers.  If you are driving your car, I doubt that you ever know your exact speed.  Few of us drive while looking at the speedometer.  You have no reason to know your exact speed before an accident. After all, you aren’t planning on having one.  On the other hand, you should know whether you were driving within the speed limit or not.  You should know if you were going with the flow of traffic.  You should know if the other car was coming “very fast”.  There are accident reconstruction experts who can figure out exactly how many seconds it was between the time you were 50 feet back from the point of impact and the time the vehicles collided.  If you give an exact number when asked how many seconds it was between the time you first saw the other vehicle, and the time of impact, it is unlikely that you will be exactly right.  On the other hand, you can certainly be truthful in saying “the collision happened almost immediately after I saw him” or “it happened very quickly, but I can’t tell you in exact seconds”.  Practice telling your story without guessing at the exact numbers.  After all, when you got home after the accident, you didn’t say “I was 75 feet from the intersection when the defendant, traveling 36 miles per hour, ran the red light and struck me 3 seconds later. What you would say is that “another car, going very fast, ran the red light, and there was no time to avoid the collision”.  Be yourself.
  4. A deposition is not a test.  Don’t try to answer every question.  If you don’t know, say so.  If you would have to go back to the scene and measure, say so.  The biggest mistake made in deposition is trying to answer questions when you don’t know the answer.  Remember, you have expert witnesses, maybe eyewitnesses, and there are records available with many details.  A lawsuit is like a play or a movie.  Everyone has a role.  Limit yourself to playing your role.  Don’t try to be the expert, or anything other than yourself.
  5. Depositions are where everyone evaluates you as a witness.  Are you going to be liked at trial?  Are you going to be believed at trial?  Dress and act appropriately.  Be your likable self.  In an injury case, be matter of fact and give details about how your injury affects you on a daily basis.  Don’t be a whiner.  If you are specific about the details of your injuries, everyone will understand.  It is much more effective to say that “I have a lot of steps in my apartment, and I can’t go up and down without help” than it is to say “my knee hurts”.  Think in terms of detailed factual descriptions.
  6. If your lawyer objects to a question, stop.  Try to understand what the reason is for the objection.  Don’t answer until your lawyer says you should.

After sitting though thousands of depositions, working with numerous jury consultants, and reading everything I can get my hands on to learn about depositions, it always comes back to these simple rules.

If you tell the truth, be yourself, and practice in your head, you will be fine.

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