How to NOT Get Roasted in a Deposition

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When a property repair project becomes adversarial, as it often does, restorers may find themselves under the bright glare of scrutiny in the grueling litigation process known as discovery.

Discovery is the exchange of evidence between parties prior to a civil trial. It is intended to narrow the issues for trial and help the parties and their counsel evaluate the case for settlement. Discovery comes in several forms: written discovery, such as questions (“interrogatories”) and requests for docu­ments; and oral discovery (depositions).

A deposition is the most powerful form of dis­covery. It is a question-and-answer session in which the witness (you) will answer questions under oath. The testimony has the same force and effect as if you were in court testifying before a judge and a jury. The examination is conducted by an opposing attorney in a private setting. A court reporter transcribes your every word. Your responses become sworn testimony in the case, and can be used by any party at trial as evidence or for impeachment. The attorney attempts to elicit responses from you that bolster your oppo­nent’s case and undermine yours.

Being questioned by a skilled examiner can be an anxiety-producing, potentially grueling life experi­ence. You may find yourself at the mercy of your op­ponent’s agenda, feeling imprisoned as you are forced to answer tricky questions. Some states limit the num­ber of hours you can be deposed. Others allow the at­torney to question you for days. Statements you make in a deposition “can and will be used against you in a court of law.” If you slip up, you could lose your case. This may mean you do not get paid for the job and/or you are held liable for the cost to repair allegedly-de­fective work. Adding to the pressure of a deposition is the fact that many of them are recorded by a videog­rapher, so there is a good chance the jury will see you answer the questions and watch you squirm.

But don’t fret, we’re here to make the process a little less painful for you!

Preparation is Key

The way most witnesses get themselves in trouble is by being under-prepared and “winging it” under oath. You must be fully invested in your performance at the deposition.

Much of the stress and confusion can be eliminat­ed with diligent and methodical preparation. This often involves a careful reading of every available document involved in the matter and extensive con­sultations with your lawyer about what to expect and how to navigate difficult issues and bad facts.

Why Should I Care?

The critical difference between depositions and written discovery is that responses to written dis­covery are written by your lawyer, usually in safe words. Good lawyers can often write responses to avoid making incriminating statements. In a deposition, however, you’re on your own! Your lawyer can object to the questions, but cannot coach you or answer for you. This leaves many witnesses exposed, vulnerable, and more likely to make inadvertent admissions.

A Simple Approach

Provide concise and accurate answers to each question.

Don’t go into a deposition ex­pecting to “win.” The goal is more about damage control than victory. A deposition is not the best time to convince the adversary of your reasoning. Save it for the jury.

Answers to deposition ques­tions should be short and sweet. “Yes,” “no,” “I don’t know,” and “I don’t remember” are often the safest answers. But some witness­es incorrectly assume that “I don’t remember” is a “get out of jail free card.” It’s not!

For example, if you filed the suit, you have the burden of proof. If you answer “I don’t know” as to critical elements of your case, you risk losing the case before trial. The defendant may move for summary judgment on the ground such answers show that the claim “cannot be estab­lished” as a matter of law.

The examining attorney will want you to elaborate on your responses because every word out of your mouth is fodder for follow-up questions. The more you say, the more likely it is that you will step into a trap. This is why the most important piece of advice attorneys give their clients before a deposition is “do not volunteer information.” Answer only the question that is asked, and then stop talking. Resist the temptation to fill dead air with words. You want the deposition to end as quickly as possible.

Tell the Truth, Man!

At the beginning of the deposi­tion, you will take an oath to tell the truth. It is a crime (perjury) to intentionally give false testimo­ny. Moreover, sloppy or inaccu­rate testimony makes it harder for your attorney to advocate for you, and may diminish your chances of achieving a good out-of-court settlement. Don’t try to state facts you think are the best for your case. Focus on the delivering the most truthful and precise answer.

The attorney probably knows details about the case that you don’t know, so it is important never to guess or speculate. You don’t want to be surprised with a piece of impeaching evidence. If you have a specific recollection of events, the examining attorney is entitled to it. On the other hand, you should not draw inferences, or engage in conjecture when tes­tifying. That would be untruthful.

Are They Allowed to Ask Me That?

The answer is probably “yes.” Civil discovery is really broad. It may relate to “any matter, not privileged, that appears reason­ably calculated to lead to the discovery of admissible evidence.” That’s right. The questions can be irrelevant to the case! Don’t let it phase you. Expect it.

With such broad scope, ex­pect the questions to inquire into your personal and professional background, conversations you have had regarding the case, and your preparation for the depo­sition. Most communications are fair game for deposition questions, except for communi­cations with your lawyer made for the purpose of rendering legal advice. Those are protected by the attorney-client privilege, which is sacrosanct. Your attorney will instruct you not to divulge privi­leged information. Almost every other type of information must be disclosed if requested, so long as it is not totally off in left field (manifestly irrelevant).

The Art of Testifying

Since you lived the events giving rise to the circumstances of the case, the questioning lawyer will want to pin you down to a set of facts. After a question is asked, pause, allow your lawyer to assert an objection, digest the question, and answer only if you truly understand the question being asked. Be mindful of your body language and try not to fidget.

Practice, Practice, Practice

Role playing with your attorney is a great way to practice. Repetition creates familiarity and reduces nervous responses. Be aware of how you present and embrace your control of the cadence of the questioning through your pauses before answering.

Parting Thoughts

Hopefully, this helps you see the incredible value in avoiding legal disputes and resolving differenc­es informally. Do you want to be right? Or do you want to be happy?

Disclaimer: This article is intended for general information purposes and is not intended to be legal advice. Legal issues should be pre­sented to qualified counsel licensed to practice law in the jurisdiction where the events occurred.

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Ed Cross & Lily Atkins

Ed Cross, “The Restoration Lawyer,” represents restorers nationwide from offices in Palm Desert, California and Honolulu, Hawaii. His firm drafts restoration contracts, collects money for restorers, and represents them in litigation. He is the Restoration Contractor Advocate for the Restoration Industry Association. He can be reached at (760) 773-4002 or by email at EdCross@EdCross.com. For more information about assignments, please visit www.EdCross.com/aob.

Lily Atkins, B.A., is the Innovation Manager and a Law Clerk at the Law Offices of Edward H. Cross. She is a passionate advocate for the rights of restoration contractors. She can be reached via email at LilyAtkins@EdCross.com.

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