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The Deposition

In common parlance, a deposition is a sworn pretrial statement normally taken by an opposing party in litigation. The transcript of questions and answers can be used to cross-examine witnesses at a later trial or as independent trial evidence, under the right circumstances. As depositions have become an all-too-common feature of the American business world, we are going to cover a few basics should you need to prepare for one.

Whether in state or federal courts, depositions are a widely used tool to gather information in litigation in order to set strategy and evaluate cases. The setting normally includes a conference room filled with antagonistic lawyers, a court reporter (with various forms of high-tech gear), and you—the witness—with your attorney. While your role is to personally serve as the witness, realize you are an extension of your company and may hold a significant aspect of its future in your hands. Sound like fun so far?

With luck, you will be asked questions that make sense from the standpoint of your relation to issues in the case. These are topics that, prior to the deposition, you will review with your attorney in preparation. That confidential preparation is important as it allows you a chance to testify successfully at your deposition. Note here that success is never perfection. In fact, the pursuit of perfection in the deposition venue includes some human imperfection, such as generating believability and its cousin, likeability.

Your preparation should confirm your understanding of the major elements of the matter in dispute; the big picture. It should also provide some framework to prepare for the inevitable question that will come up in your deposition that you did not anticipate.

Make sure your lawyer is informed as to who you are and are not, what you think you know and do not know relating to the overall situation (potential opinions), and what you have done and have not done (matters of fact) that could be relevant to the issues. Bring up the tough questions and what you understand to be the truth regarding them. Review key documents, especially those that you have seen before. Open up and ask questions of your attorney now; in deposition, your ability to get information from counsel or anyone else is severely constrained, legally and practically.

Five Tips for the Witness Chair

  1. Listen
    You must actually hear the questions in order to have a chance at answering accurately. Every time, I mean every time, you did not hear or understand a question, your response should be, “please repeat the question.”
  2. Think
    Having heard and presumably understood the question, you must determine if you have the knowledge to answer with confidence. If you do not, any answer is guessing and speculation should not go into evidence. The reply to any question you may not be able to answer confidently should be, “as I sit here, I do not know the answer to your question.” You are being deposed in one moment of time and it is at that moment you do not have the answer to the question. You may be able to find the answer, but don’t volunteer that—make the opposing lawyer work for their money.
  3. Speak to the Point
    If you do have confidence that you know the answer, effectively and efficiently answer the question that was actually asked, and not what you think should have been asked. Effective answers promote the interests of your company. Remember, somebody with knowledge has to establish what you need to win. Efficient answers are concise and full, but do not ramble or waste words.
  4. Tell the Truth
    It’s your oath. The alternative is not worth it. With good preparation, your lawyer should be aware of what you know the truth to be regarding all sensitive subjects.
  5. Leave it in the Room
    When the deposition is over, stand up, nicely say “goodbye” and leave the room. No more talking about the case, period.

Author

Paul Gary

Paul Gary

Paul R. Gary is the prinicipal of The Gary Law Group, a law firm based in Portland, Ore., emphasizing legal issues facing manufacturers of windows and doors. He welcomes feedback about articles published in Window & Door and can be reached at 503/227-8424 or paul@prgarylaw.com.