I’ve been summoned to give a deposition related to a lawsuit filed against our company. What tips do you have to help me to prepare? — Sharon, HR Manager in West Sacramento
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Because HR managers are involved in activities related to lawsuits—hiring, firing, discipline, and investigations of misconduct—many of them will end up being deposed at some point during their careers.
To answer your question, let’s talk a little about what a deposition is and then about what you might do to prepare.
What Is a Deposition?
A deposition is part of the pre-trial process known as discovery, during which fact-finding and investigation take place. Discovery usually begins with interrogatories (written questions that must be answered under oath) and requests for documents. After that come depositions, which may take place weeks or months before a trial. During a deposition, an attorney for one side asks questions of a witness for the other side. The process is conducted under oath but outside the courtroom, and a court reporter makes a transcript (a word-by-word account) of the deposition.
Depositions are used to gather information as well as to obtain testimony from a witness who may not be available at the trial. Lawyers usually prefer to depose a witness even if he or she is going to testify at the trial. It lets them prepare their cases with a reasonable degree of certainty about what witnesses will say. Depositions are also used in a “motion for summary judgment,” in which an attorney tries to put an end to a claim before it ever reaches a jury.
In addition, a deposition may be the first chance your lawyer has to thoroughly assess the issues and make a recommendation for trial or settlement.
So don’t treat depositions lightly! What is said at a deposition may lead to a dismissal or a reasonable settlement—or an expensive jury trial.
A Typical Deposition
On arriving for a deposition, you will be placed under oath and a lawyer will ask you a series of questions. Lawyers for both the plaintiff and the defendant will be present and will have a chance to question you. Lawyers may object to a question, just as in a trial, claiming that it should not be answered. But, because no judge is present and the objections cannot be ruled on, you are usually required to answer the question unless the information is “privileged” and would reveal a confidential communication between client and attorney. Later, the judge will decide if the answer should be disclosed in court.
Preparing for the Deposition
Your attorney will generally help you prepare for the deposition and discuss the topics and types of questions the other side is likely to bring up.
It’s a good idea to rehearse questions and answers beforehand to be ready for the psychological rigors of a deposition. Set aside time to review the facts of the case.
Note that preparation meetings are privileged attorney-client discussions, meaning neither of you can be forced to disclose anything said in them.
If a videotape will be made, you need to consider your appearance and on-camera presentation skills.
Trick Questions
It’s also important to learn the ways that attorneys may attempt to trick and trap you into saying something unintended or otherwise not helpful to your side. The plaintiff’s lawyer will ask questions he or she already knows the answer to, either to gain a sworn confirmation of damaging information or perhaps in hopes that you will lie or become confused. The other side will look for inconsistent statements, half-truths, or other problem areas in your statements. Then, at trial, it will present a document or witness to contradict those statements. The result: Your credibility is shot. And since you represent the company, the jury may conclude that the company has lied about everything. Here are some tips:
- Be wary of questions with two parts—they may be tricks. Ask that the question be restated.
- Take care with questions that seem very broad or are asked repeatedly in different ways. Again, the attorney may be trying to trap you into something.
- Be ready for sudden complex or difficult questions. Sometimes attorneys will throw a number of boring, easy questions out and then, when you are tired or off guard, hit you with a tough one.
Documents
Documents needed to illustrate answers or provide factual backup to statements should be brought to the deposition. Be sure to review them beforehand. Bring original documents, but make photocopies as well in case the attorney for the other side needs them. Your attorney will help you decide which documents to bring. Do not present anything to opposing counsel that your attorney has not reviewed first.
Location
Avoid giving a deposition at your place of business. There are too many distractions plus the possibility that the opposing attorney could overhear or see something inappropriate or ask for documents on the spot.
How to Conduct Yourself in a Deposition
- Tell the truth. Once you tell a lie, you lose all credibility, which is critical in a lawsuit because a judge or a jury is trying to figure out who is telling the truth. A small lie can destroy any positive statements you’ve made.
- Answer only the question asked. Listen to the question and then answer just that question. The more you volunteer, the more likely you are to make an unintentional admission.
- Pause after each question is asked. This gives you a moment to collect your thoughts and gives your attorney a chance to object.
- Be brief and to the point.
- If unclear about a question, ask that it be repeated.
- If you don’t know the answer, just say so.
- Finally, stay calm. The opposing attorney may try to provoke you and make you say something that can be taken out of context.
— CELA Editors