This blog post discusses ten strategies or tricks lawyers use in depositions. Whenever one must navigate a deposition without counsel, it can be an intimidating ordeal. Even the bravest among us can become uneasy when probed by opposing counsel. Staying on top of details and responding accurately can be exhausting, and often times stressful. Luckily, these ten strategies can help you get through this difficult situation with confidence.
How does a deposition work?
The purpose of a deposition is to testify under oath outside of court. A party to the lawsuit, a witness, a medical professional, or an expert in the case gives testimony before the trial about what they know and what they think about the legal dispute. The court reporter records a witness’s oral testimony and uses it as evidence in the case at trial through a written transcript.
A deposition is intended to find out what a witness knows and record their testimony, so that both parties can discover all the relevant information and avoid surprises in court. The tricks lawyers use in depositions are tools they use to gather data to help them build a case. Anyone with knowledge about the case’s facts can be questioned.
Deposition Expectations
Usually, depositions last between two and four hours, but are held in your lawyer’s office, not in a courtroom. There are usually three people in the conference room: your lawyer, a court reporter, and the other lawyer. When you are under oath, you will be asked a series of questions about the facts and circumstances surrounding the case, and you must answer honestly and completely.
Your attorney can raise objections to the questions; however, because a judge will not be present, any such decisions must be made later. Your attorney won’t usually authorize you to withhold your testimony. Your opposing attorney cannot ask you about any discussions or information you had with your own counsel because of the “attorney-client privilege” and confidentiality that you and your lawyer share. Data as well as talks are kept confidential.
A court reporter transcribes the deposition word for word to ensure that the transcript reflects the testimony and events accurately. A few days after it is over, you can obtain a copy of it, read through it, make sure everything is correct, sign it and then either sides may use it for the trial or to assist in motions.
Deposition preparation
Depositions allow both sides to survey the potential benefits and pitfalls of their situation and assist them in planning for court. The opposite counsel may endeavor to keep you affixed to a particular version of events, perhaps one that is not accurate, but is more beneficial for them, their lawyers, and the insurance carrier. Remember the defense attorney is going into this deposition with a purpose. Although the testimony may be incorrect or impartial about the occurrence, your wounds, or medical care, it may be designed to produce evidence detrimental to your case.
During a deposition, the attorney of the opposing party can try to pin the blame on you, even if you are innocent. However, they may also try to prove that you had a pre-existing medical condition that could be responsible for ensuing health problems. Not all defense attorneys behave like this, but if it happens to you, stay firm and remember your lawyer will be there to support you. You have an opportunity here to tell your side of the story and how this accident changed your life.
The best way to prepare for your deposition is to review details you may not recall. You must give consistent accounts of what transpired, otherwise, your defense attorney might unfairly use it against you. Any prior statements you have made regarding your case, your police records from a traffic accident, and any other court-filed materials, such as your answers to interrogatory questions, should be evaluated.
If any pertinent dates, times, or incidents are brought up during an interview, review any logs, calendars, notes, or other material. Never be embarrassed to acknowledge if you don’t know the answer to a question. Be concise, detailed, and respectfully professional. Request a copy of the medical record if you are asked about it so that you can review it and respond to the questions.
It’s essential that the testimony be truthful. Ask your attorney any questions you may have before the deposition. You should discuss any areas dealing with personal problems that you do not want to share and any details you believe are inappropriate or irrelevant. If your attorney learns information at your deposition for the first time about specific privacy-related problems, it may be more difficult for them to uphold your rights and interests.
Be sure to get enough sleep, eat something, avoid taking any drugs that may make it difficult for you to testify that day, and take a deep breath the night before your deposition. It is simply an opportunity for you to share your side of the story, and your attorney will be by your side every step of the way.
There are 10 tricks to avoid when you’re in the deponent’s chair during a deposition
When you’re the defendant, you can bet that the plaintiff’s attorney has an arsenal of sneaky tactics to gain the upper hand during a personal injury deposition.
It is a trick’s goal to make you say and do things that will look bad to the jury, regardless of how obvious or subtle it is. Thankfully, with a little advance preparation, you can learn to recognize and combat these tricks to better protect yourself and your company from costly, unnecessary exposure. Click here to learn more about each tip.
1. Prepare for the storm.
The plaintiff’s attorney will do all they can to make the questioning a very uncomfortable experience. You might feel like you’re in the middle of a tumultuous storm, yet there is one way to find some tranquillity – create harmony in your life. Connecting mentally, emotionally and physically with yourself, and doing something intellectual everyday is a good way of achieving this. While regular daily routines are often the most efficient approach, if it’s the day of your deposition then use a swift morning routine to re-establish balance.
2. Make sure you know who your enemies are.
It may be hard to believe, but your real adversary during a deposition is not the plaintiff’s attorney – it’s your own fight-or-flight response. While this natural reaction can be beneficial in a dangerous situation, it can be significantly detrimental when seated in the deponent’s chair. If left unchecked, you could become overwhelmed with feelings of anxiety that lead to stammering and even making rash or inappropriate comments to the jury. To help deal with this common fear, plan ahead by discussing possible escape routes with your attorney before entering the courtroom. Even seemingly small acts such as smiling can help lessen stress levels and create a better perception in front of the jury.
3. Go with the flow.
As one way of provoking your fight-or-flight response, the plaintiff’s lawyer will use aggression. The trick is to avoid taking the bait. Aggression tactics can include power moves, intimidation, hostility, and disrespect. He might interrupt you, speak harshly, or insult you. Go with the flow, use your Escape Route, and don’t fight back.
4. You must rise above.
Humiliation is one of the primary factors that can cause a fight-or-flight reaction. Everyone has felt this emotion, so many are easily influenced by it. The lawyer may be aware of any embarrassing moments or anxieties you have, and use them as a weapon. This type of ‘Pull Tactics’ can be overcame if you practice self-awareness, remain composed and trust your lawyer to step in if things become too extreme.
5. Keep your head up.
By creating the impression that you have violated a professional or moral standard, your plaintiff’s attorney may also try to induce embarrassment, guilt, or shame by creating the impression that you have buried your shame. Stay calm, use your Escape Route, and answer confidently to these Push Tactics that are harder to anticipate and therefore more difficult to prepare for.
6. Preparation is key.
The vulnerability we experience when we are confused or disoriented triggers the fight-or-flight reflex, too. Our brains actually perceive mental confusion as a physical threat to our lives. Lawyers use a boatload of tricks to induce confusion in deponents – they might lure you into skipping lunch, which leads to low blood sugar, or overuse legal rules and procedures to make you feel disorientated and overwhelmed. Planning ahead is the key to navigating the Fog of Confusion!
7. Be cautious when proceeding.
Also, attorneys love to make you confused by playing mind games. Using long or complex sentences, asking questions out of sequence, or even pretending to be confused by your answers, they can irritate, anger, and frustrate you. Whenever driving in fog, drive with caution, reduce your speed, and use your Escape Route if necessary.
8. Be alert at all times.
By inducing confusion hypnosis during the deposition, the plaintiff’s lawyer will attempt to get accidental admissions from you. In spite of its improbability, deponents often make untrue, accidental admissions. You can ensure that you provide only truthful testimony by staying present and mindful.
9. Maintain a sense of direction.
It is the lawyer’s job to get you information – but not just any information. She needs the right information for her case. In order to do so, she needs the jury to view the world from her point of view, a “False Horizon”. The best way to stay oriented is to use your tools – the facts, the tools you’ve learned in this series, and your attorney to stay away from False Horizon tactics.
10. Make sure your roles are left at the door.
You must become the villain in their Victim’s story for the plaintiff to win big. Transcend the Villain- Victim Vortex. You can practice true empathy by releasing the assumptions and expectations you’ve set for yourself and others by honestly assessing the roles you play in your own life. Now you’re a force of nature to be reckoned with.
In each case, the facts and risk factors will differ, and each lawsuit is a different “storm.” In today’s volatile litigation climate, big plaintiff verdicts often share some common elements, and depositions provide an ideal setting for turning a storm into a hurricane. When a defendant performs poorly at a deposition, the plaintiff’s job becomes much easier.
While depositions are uncomfortable, irritating, and sometimes scary experiences, you actually have a lot more control over your circumstances than you might think.
If you follow these guidelines, you should feel empowered to take on any deposition, or any other “storm” life may throw at you.