Although the popular image of litigation focuses on courtrooms and dramatic cross-examination, the truth is that most civil litigation is resolved before any trial. Therefore, deposition testimony is generally the only testimony in the proceeding. Cases can be won or lost based on how a witness answers a single question at deposition.
Here are some tips for the small business owner facing a deposition.
Be prepared
Business owners often inform their lawyers that they will not waste time preparing for an impending deposition. They usually base their reluctance on two grounds: they feel they can prepare without their lawyer’s help, and they do not want to spend the money. The truth is that performing well at a deposition takes preparation and guidance.
Entrepreneurs often possess a strong sense of self-reliance. Although admirable in starting and growing a business, this can be fatal in civil litigation. Whether you have never testified before or are an old hand, your attorney is virtually certain to have a different view of the significance of certain facts, and will almost certainly have taken and defended far more depositions than you will have seen.
Deposition preparation can be costly. However, if the litigation is worth spending resources on, then it is worth the investment necessary to protect yourself in the deposition room.
Be honest
Tell your lawyer the truth. A lawyer needs to know all the facts in order to defend a deposition effectively and help you prepare for it.
Often, executives and business owners feel embarrassment about some fact in the case and are therefore reticent about sharing that fact with counsel. Glossing over those points with your lawyer will not make them go away, but will prevent your lawyer from helping you prepare to deal with those issues effectively in deposition.
When your lawyer learns certain facts about your case for the first time in the deposition room, he or she is deprived of the chance to develop a strategy to minimize the impact of those facts or even to exploit them for your benefit.
It is also important to tell the opposing side the truth. Apart from being illegal and immoral, lying in a deposition is bad strategy. Deposition transcripts live forever.
Although it may be tempting to believe that the other side will never know the truth, the fact is that most lies reveal themselves over time. Once a lie is uncovered in the transcript, the lie will haunt the case for its entire life.
In fact, a skilled attorney often hopes that the witness he or she is deposing will lie. Proving that the other side is a liar can often lead to victory, even when the lie was on an unimportant issue, because it allows a judge or jury to begin to disregard even truthful testimony.
Don’t try to out-lawyer opposing counsel
A very common mistake executives make at deposition is trying to out-lawyer opposing counsel. This generally manifests itself as an unwillingness to answer direct questions, arguments with opposing counsel or hypertechnical interpretations of questions to permit a less-than-completely-honest answer. This plays directly into your opponent’s hands.
Testimony that is evasive, confusing or unclear often looks like false testimony, even if it was intended to be truthful. That sort of testimony allows opposing counsel to portray the witness as a liar. Let your lawyer prepare you to avoid that mistake.
Preparing for deposition is simply preparing yourself to answer questions truthfully, without answering questions you are not asked. This means working with your lawyer to understand the facts and the documents that will play a role in the case, and learning the art of answering sometimes complicated questions simply, clearly and truthfully.
Preparation, with the assistance of counsel, is essential. Subjecting yourself to a deposition without adequate preparation is likely to lead to disaster.
Marcel C. Duhamel is an associate in the Cleveland office of Vorys, Sater, Seymour and Pease LLP, where he practices in general civil litigation. Reach him at (216) 479-6112 or [email protected]
