REQUIRED READING: On Guard: Prepare Yourself For A Courtroom Deposition


Are you prepared for your deposition? As you are your company's designated corporate representative, your deposition will affect your company's losses related to the nonperforming loan or asset in question.

The techniques and guidelines in this article can help you and your staff prepare for a successful deposition. During your deposition, the opposing party and the opposing counsel will be sizing you up to determine what kind of witness you will make at trial. A strong deposition will demonstrate that you are confident about the facts and your legal position and that – if necessary – you are not afraid to be a witness at trial.

Who are the players in a deposition? A deposition generally takes place in an attorney's office. The attorneys for the parties and a court reporter are usually present, and many times, the opposing party may also be present.

At the deposition, the court reporter will swear you in and place you under oath. Therefore, the procedure is no different from testifying in court: Your answers are testimony.

Most importantly, how do you prepare yourself for a deposition? Above all, keep your responses as simple and concise as possible. Short, truthful and thoughtful answers are the key. Do not speculate. Listen carefully to the question asked and answer only the question asked.

By following the following rules and practicing the recommended techniques, you will become an effective witness.

  • Remember, the deposing attorney is not on your side. Do not be complacent – stay alert. No matter how courteous or helpful the opposing attorney may be, it is important to remember that he or she is not on your side. Opposing counsel has a job to do, and that job is to obtain information from you that will help his or her client win its case. Do not forget this fact.

  • Do not explain or narrate. Listen carefully to the question, and if possible, answer the question with a ‘yes’ or a ‘no.’ With every word added to an answer, you potentially give the attorney more ammunition to use against you or your company. You do not have to prove your case or defend yourself or your firm at a deposition.

Furthermore, silence is acceptable. There is value in knowing when to stop talking or to stay silent, and you should use this tool to your advantage. Silence may be uncomfortable at times, but it is often golden.

If you answer the question and silence ensues, resist the natural urge to fill the uncomfortable gap by expanding upon or explaining your answer. Picture the following scenario: As the deposing attorney, I ask my question and the witness answers the question, and then I say nothing for seconds. Not infrequently, the helpful witness jumps in to explain his or her answer.

Doing so is a very effective tactic by deposing attorneys, and you should not let it be used against you. Fortunately for deponents, many attorneys like to talk.

  • Be prepared and know your file. It is important to thoroughly review your file and systems before the deposition as if they were a final exam that you need to ace in order to graduate.

If you need direction on what issues, information or documents to concentrate on for your review, seek guidance from your attorney. Do not create new documents, such as payment spreadsheets or outlines, for a deposition. In addition, do not take any paper, notes or documents into the deposition that have not already been produced to the other side. When in doubt, ask your attorney.

  • Do not speculate or guess an answer. If you don't know, say so! Only answer the question if you know the answer and have firsthand knowledge. Do not answer the question if you would have to guess or speculate about the response in whole or part.

You do not have to know everything. Respond with ‘I don't know’ or ‘I do not remember’ – it is that simple. Beware of follow-up questions such as ‘Is there any document in the world, or record in your system, that I could show you that might refresh your memory?’ or ‘Is there any document or system screen that contains that information?’ or ‘Have you told me everything you know or recall regarding the (loan, payment, escrow advance, property, etc.)?’

These types of questions are a fishing expedition. The opposing attorney has just cast his line, and you are the catch of the day.

  • Know when not to answer a question. If your attorney instructs you not to answer a question, if you are not sure you understand the question, or if you can answer the question in more than one way, stop and ask for clarification or ask that the question be repeated or rephrased.

If opposing counsel asks broad, multi-segmented questions, beware: Long, complicated questions are used to trap you into inconsistencies, and there is a greater likelihood that you will answer such questions incorrectly or ineffectively.

If the question is complex or if you think you hear more than one question, and your attorney does not object, ask the opposing attorney to restate the question or ask a single question at a time. Require the opposing attorney to ask short and concise questions.

If your attorney objects to a question on the ground that is unclear or vague, remember to agree, and ask that the question be rephrased.

  • Understand the scope of your deposition. Review the Notice of Deposition and discuss the scope of the deposition with your attorney. You were chosen as the corporate representative because the deposition notice was for the company representative with the most knowledge about a particular subject or subjects.

If the questioning concerns a different topic or subject, however, you should answer ‘I don't know.’ For example, if opposing counsel attorney asks you to state the facts or legal theories that support your defense, your response is simply, ‘I do not know.’

Knowing legal theories is your attorney's job – not yours. Remember, do not speculate or guess about the answer. If you don't know, say so.

  • Take your time. Pause and think before you answer a question. Restate the question to yourself silently. By pausing, you give your attorney an opportunity to object to an inappropriate question, and you give yourself time to make sure you understand the question and to compose your answer.

  • Do not answer questions when you are tired, hungry, thirsty or angry. Do not be reluctant to ask for a break. Responding when you are tired, hungry, thirsty or angry results in careless answers that will come back to haunt you. Therefore, request a break and take the time to compose yourself.

I call this technique ‘stop or drop.’ In other words, do something to break the flow of the deposition and the attorney's concentration to allow you and your attorney the opportunity to redirect the flow and/or to compose yourself. Ask for a break, drop your pen on the floor or ask to speak to your attorney – do something.

  • Ask to speak with your attorney. You have an attorney to ensure that you are okay and to help you. Therefore, do not hesitate to ask to stop the deposition so that you may speak with your attorney.

  • Be prepared for a long day. Everyone wants to get home as quickly as possible, but try to plan your itinerary so that you are not rushed for your return flight.

If the opposing attorney senses you are uncomfortable, nervous or in a hurry to leave, you are more likely to encounter a prolonged deposition and/or more aggressive questioning. Remember, there is gamesmanship at play. That said, if you know you must leave by a certain time, you should tell your attorney up front so that time boundaries are set at the onset of the deposition with the opposing attorney.

Finally, remember to take a deep breath and relax.

This article does not represent legal advice. Consult with counsel on all legal matters and litigation.

Michele Baldassano is an associate attorney with Barrett Daffin Frappier Turner & Engel LLP, focusing on real estate matters. She can be reached at (972) 386-5040.

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