Depositions or examinations before trial are standard discovery tools in litigation cases.
The opposing attorney gets to ask questions to find out details about the case and to gauge the person being deposed.
I always give my clients the same advice when it comes to depositions and the advice can easily be summed up with the phrase “keep your mouth shut.” I tell my clients:
1. Listen to the question asked and only answer that question. - Every client when asked a question wants to give the backstory and reason behind their answer. They also take the opportunity to add everything think is relevant as to why they should win the case.
2. You cannot win your case in a deposition, but you can lose the case-I promise that no opposing attorney will walk out of the deposition and tell their client to “give up now you don’t have a chance.” However, plenty of attorneys have walked out of deposition saying, “we got them.”
3. You are not in a hurry, take your time to think about your answer-Most clients get nervous in a deposition and answer as fast as they can. There is no need. I have seen people being deposed who can’t remember which way is up because they get so flustered. Take your time, think about the question being asked and compose your answer.
I also remind my clients that a deposition is a trial run for trial. The opposing counsel does not just want to see what you answer, but how you answer. Is the witness combative? Is the witness going to play well to a jury? Is the witness sympathetic?
I tell my clients that they need to be on their best behavior and present themselves as the perfect witness.
I have seen the nicest clients be downright mean to the opposing counsel and look like horrible witnesses. Whenever a client does a horrible job at the deposition, they have also done a horrible job at trial.
So, if you ever find yourself in a deposition, please listen carefully, answer in as few words as possible and be your most charming self.
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