Recently, several clips from 20 year old pop-star Justin Bieber's video deposition made their way around the Internet. To say the least, he did not help his public image or his case. While it's easy to dismiss his behavior as immature, poor conduct during a deposition by any key witness, whether CEO, expert or simply a witness to events, often undermines otherwise winnable cases or destroys the credibility or reputation of the deponent. To be effective, a witness in a deposition, no matter how experienced, must exercise humility, act professionally, rely on thorough preparation and avoid the temptation to tell the deposing lawyer "everything" they think the opposing counsel needs to know.
Why Depositions are Really Taken
Clients often think their deposition is their opportunity to tell the other side why they are right and the other side is wrong. This tactic only results in complications for their case. Ideally, the only time a client should be telling their story is when they are in front of the ultimate arbiter of their case, and their attorney is questioning them.
The purpose of a deposition is to elicit testimony to be used against the deponent or the deponent's side of the case. There is no other purpose to a deposition. The lawyer taking the deposition wants to nail down good facts for their case, give themselves enough leeway in the record to overcome bad facts, develop information to use to impeach the witness at trial, or obtain or overcome a summary judgment motion. In other words, a deposition is taken with specific purposes in mind.
What is Appropriate at a Deposition?
For the person being deposed, a deposition is only one thing: a place where you must answer fairly asked questions truthfully and concisely. Ensuring fair questions is the responsibility of both the lawyer defending the deposition and the deponent. Unfair questions are those that are confusing, compound, ambiguous or could otherwise be misinterpreted when taken out of context, especially when deposition transcripts are used at trial or in motions.
The answer must be truthful. The witness who believes they can win the case at the deposition is also the witness who is likely to color what actually occurred with a version of the truth that best suits the case. This is not the witnesses' job. It is up to the trial lawyer to present the facts in a persuasive manner to convince the jury, judge or arbitrator that the client should win. It is the witnesses' job to report the facts as accurately as possible. Attempting to do anything beyond this is a trap into which all too many self-assured deponents fall.
The answer must be concise. Every word uttered at a deposition is another opportunity for the opposing lawyer to score points against you. Every statement made that is not a concise, truthful and a direct response to the question posed is a gift to the opposing lawyer. Trying to explain your answer or your position will do nothing to shorten the deposition, but can do harm to the case or your credibility.
Lastly, demeanor and attitude must be considered, as exemplified by Mr. Bieber. If Mr. Bieber had simply tried to answer each question truthfully and concisely, there would not have been a viral video. If he understood the role of the court reporter, he would not be taking a beating over his expletive filled tirade against her for trying to do her job.
Proper Preparation is the Key
Most business people who have experienced a deposition have only done it once. Lawyers take depositions all the time. Proper preparation with your trial counsel is the key to leveling the playing field and taking the power away from the lawyer on the other side. Proper preparation, however, does not necessarily mean rehearsing the questions and answers. Rather, making sure the deponent has a solid understanding of the theories and themes of the case, the deposition process, the goals of the questioning lawyer and the pitfalls that await the too anxious, or poorly behaved witness is time better spent. By understanding the importance of demanding a fairly asked question, answering it truthfully and concisely – and for that matter – politely - you will be amazed at how readily the rest of the pieces fall into place.