This article is a companion piece to this video
In this episode of On Subrogation: Guidelines for Depositions, Rathbone Group subrogation attorney Mark Demian discusses 13 best practices for being deposed.
Many people are nervous when notified they are being deposed. And it is a serious matter, but it is also not an interrogation. Preparedness is key when going into a deposition, and there are strategies you can use to make sure you appear calm, confident and credible.
As experienced subrogation attorneys, we have guided clients through thousands of depositions. These are our 13 best tips for breezing through any deposition:
1 – 4: Answering Questions
1. Tell the truth.
This is the Golden Rule of being deposed. Even a small mistake in your testimony can make the truthful parts of what you say seem less credible. Tell the truth, mindfully.
2. It’s okay not to know the answer.
As long as it is the truth, “I don’t know” is a perfectly good answer to a question. It is human nature to want to seem intelligent and knowledgeable, but if you actually do not know the answer to a question, “I don’t know” and “I don’t recall” are valid responses. You will make yourself look less credible by trying to make educated guesses.
3. Be mindful of the image you are projecting.
Your testimony is important, but so is how is the way others perceive how you give that testimony. Be confident, audible, courteous, willing to accept responsibility, and always stand behind your decisions.
4. Read documents before answering a question.
If you are handed a document during your deposition, read it. Ask for time to, if needed. Even if you think you know what it says, read it before you say anything in response to the attorney’s question. This is a big reason it is important in discovery to review all items because you’ll almost definitely be asked about them during a deposition.
5 – 7: The Importance of Listening
5. Listen to the question and be sure that you understand it.
Avoid blurting out an answer; always pause to absorb a question before you answer. This is another time where people want to seem knowledgeable, and the opposing attorney can use that to lure you into a misstatement. Ask for repeats, clarifications, etc, so you know exactly what they’re asking. Requesting them to repeat or clarify a question is not a sign of weakness; it shows you’re listening and you’re not going to be drawn in to making a misstatement.
6. Listen for an objection by your attorney.
This one is twofold – the things your attorney is objecting to/questioning may direct you in how to form your response. As well, you want to hear your attorney when they object or tell you not to answer a question.
7. Listen for assumptions of facts.
Innocent or not, the opposing attorney may assume facts and ask questions that include those assumptions, that you then disagree with, in attempt to get you to volunteer information unwittingly. For example, the attorney may ask if the traffic was heavy or light the day of the accident. What if it was neither? Erratic? In the middle? – The best thing to do in these cases is advise the attorney that you can’t answer one way or another.
8 – 11: Things to Avoid
8. Avoid volunteering information.
Answer what you’re asked, but not anything more. If it’s a yes or no question, limit your answer to a yes/no. Attorneys will often sit and stare for long moments after you give a simple answer because it’s human nature that the witness will want to fill in gaps with more information. Resist this temptation.
9. Avoid superlatives.
Do not use terms like “never” and “always”. These qualifiers open you up to vulnerability in cross examination, and you look less reasonable when statement are so absolute.
10. Avoid estimates of speed, time and distance.
People are notoriously bad at estimating things like speed, time and distance, and making rough estimates will only open you up to complications in your testimony. Only give these if you’re very sure, and/or have concrete evidence to back up the claim.
11. Avoid arguing with the attorney.
Keep your cool throughout the deposition. Some attorneys really are just trying to get information and be polite, but others will be aggressive and accusatory on purpose in an attempt to get you into a contentious state, where you are more likely to make a misstep. As well, being argumentative will hurt you and your company’s credibility. No matter how intense the attorney gets, don’t get argumentative; stay calm and courteous.
12-13: Things to Remember
12. It’s okay to correct any mistakes.
Don’t be afraid to correct an error in your testimony if later in the deposition you realize you misspoke or misremembered. As soon as you realize you’ve made a mistake, ask for a pause, then say you made a mistake and would like to correct it. Depositions are also usually transcribed and sent to each party for review, so you can also correct mistakes there.
13. It’s okay that you consulted with others to prepare for the deposition.
You’ll be asked did you prepare for/speak to your attorney about/consult with someone/etc, for the deposition. Don’t be guarded or defensive in your response; it’s perfectly normal to have consulted others. It shows your testimony is important to you and you’re prepared. But be careful not to reveal the content of any conversations with your attorney if asked. Your attorney will also be there to stop you from doing that.
Have more questions about depositions or other subjects in subrogation? Reach out to us at video@rathbonegroup.com to ask questions and suggest topics for future episodes of On Subrogation. And you can find every video and podcast episode of our On Subrogation series on Rathbone Group’s YouTube channel and podcast library.