December 19, 2005 (Original publish date) • By Dennis Beaver
I am employed by a school district in the areas where your column appears, not far from Fresno, and have been informed that I may be involved in a great deal of litigation. A supervisor told me that I needed to brush up my deposition skills. This has me worried. I vaguely know what a deposition is, but have never been “deposed.” Can you give me a few pointers, and possibly suggest any good reading material?
A Critical Stage of a Civil Suit
A Deposition is another one of those odd sounding legal words that simply means Statement, as in giving a statement. Depositions are part of what we call discovery, the process in our system of justice where each side “discovers” important information about the other. The theoretical purpose behind discovery is to promote settlement. If everyone has a good grasp of the facts–your view of the evidence and mine–then chances are good that we’ll come to a settlement. That’s the theory, at least.
If your lawyer says, “We have to schedule your deposition,” think of it as a something like an appointment with a doctor–a specialist–for a complete examination on a specific medical problem. Only instead of a doctor’s office, you’ll probably be in a lawyer’s office, and you get to keep your clothing on! Now, even though the Deposition takes place in a lawyer’s office, and a court reporter will be there taking down everything that is said in a somewhat informal atmosphere, it is a critically important stage.
Discovery expert, attorney Ashley Lipson puts it this way, “Discovery is a process where people whom you do not like ask you to hand them private information. It is one of the most important stages of a case, and can be nasty. Ours is an adversary system of justice, and though we talk of being polite, a lawsuit is no tea party. It is war, some of the battles waged quietly, almost invisibly through the Discovery process.” Mr. Lipton knows what he’s talking about, as he is author of Guerrilla Discovery, a by-the-numbers guide for attorneys or members of the public who will be involved in this time consuming and emotionally charged aspect of a lawsuit.
Advice From The Expert on Depositions
I recently had a chance to talk with Attorney Lipton and have studied his book. Of all the manuals on discovery that I have read over the years, his makes one thing extraordinarily clear in the opening few paragraphs. “Agree or disagree, like it or not, a lawsuit is war. You do not enter a battle hoping to lose. Lawyers are modern gladiators. This sounds harsh, but litigation is no game. If the client or attorney fails to understand just how critically important Discovery is, even with a good case, your chances of prevailing are limited.” So, what should you expect to happen when “they” take your deposition? How should you dress? Act?
While lawyers may differ as to the specifics, I always tell my clients to understand that appearance is important. You are being sized up by the other lawyer. No one is ever penalized for looking clean and neat. Piercings, tattoos, or strange clothing might be fine in certain settings, but rarely in court or at a Deposition.
The lawyer who is taking your deposition will state, “No one is here to trick you,” but as Mr. Lipton feels, “for many lawyers, that’s what it’s all about: doing anything possible to trick you.” That’s why it is so important to carefully listen to the questions asked, and if something is unclear, say so!
Don’t Volunteer Information
Close to “Listen” comes “Know when to Remain Silent.” There is a natural desire to explain our behavior, to justify what we’ve done, or to blame someone else. This may not be the time for it. When your are a deponent, it is very much like being cross-examined, and any weakness in your story will be exposed. Tell the truth and don’t answer questions that have not been asked.
This Isn’t T.V. Don’t Argue
If things get truly nasty and you are being beaten up unfairly by the questioning, your lawyer will step in to protect you. However, be careful of getting into an argument with the attorney asking you questions. Such conduct is rarely productive, and may alert the other side to ways of making you look silly.
Pay Attention to Your Language
As a deposition is typed by a Court Reporter–and possibly videotaped–pay careful attention to language. If you need clarification of a question, say so. Most lawyers have had the client who was asked, “So, did you run the red light?” To which the client, raising his voice as if to ask a question, replies, “I ran the red light??” What is typed up by the stenographer may read, “I ran the red light!!”
Your best preparation for a deposition is a practice session conducted by your attorney. Ashley Lipton subscribes to the same philosophy as that of many lawyers. “I hammer my clients, playing all kinds of roles, so that when I am finished with them, the real depo will be a piece of cake.” I agree with that attitude, and it is important for clients to understand that they need a certain amount of “tough love” from their lawyer prior to any form of testimony.
Ashley Lipson’s book, Guerilla Discovery, is available from James Publishing and their number is (800) 440-4780. While it isn’t for everyone, it certainly can be of real benefit to lawyers and anyone who needs to understand this area of the law well. You can criticize him for having a “take no prisoners” attitude, but he is telling the truth about what really goes on in the world of litigation.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.