What about Depositions? Three Tips to Prepare

Most people probably know that a deposition is an important fact-finding tool used in litigation to uncover information, but very few non-litigators know what to expect unless they have experienced a deposition first-hand.

Almost every business dispute that leads to a lawsuit will eventually involve depositions of the parties involved in the lawsuit, as well as possible fact witnesses. Even after the COVID-19 pandemic began in 2020, depositions continued, with most (if not all) conducted remotely by teleconference or video conference, which is a trend that will likely continue.

Here are three tips to prepare if you ever find yourself about to be on the hot seat:

1. Know the Players

Know who will participate in the deposition. One or more attorneys for each of the parties, the individuals named in the lawsuit, and one representative for any entity named in the lawsuit will likely attend. A court reporter will also attend to record everything that is spoken, and a videographer may also be there to record the witness. Finally, if you are deposed as a third-party fact witness, a separate lawyer should likely attend on your behalf.

Texas courts mandate that depositions cannot last more than six hours in one day. Federal courts allow up to seven hours. Importantly, these time limits do not include breaks. So, depending on the subject and the person’s knowledge, a deposition can last an entire day.

2. Get Familiar with the Process

Knowing what to expect during a deposition is very helpful, but too much preparation can be counterproductive. If you are a party, it is almost always helpful to talk about themes, review key documents, and review pleadings and discovery responses, but you should avoid trying to memorize answers. The reason is that you can recall themes and concepts in a deposition, but memorizing answers is a fool’s errands because questions can be asked in too many ways.

In addition, the purpose of the deposition is to discover what the individual knows or recalls, not what was recently learned. The one exception is when you are deposed as a corporate representative for an entity. In that case, the party requesting the deposition must provide a list of the matters on which the examination is requested, and the organization must designate one or more individuals to testify on its behalf. In turn, each designated individual must testify as to matters that are known or reasonably available to the organization. Importantly, a corporate representative is not giving a personal opinion; rather, the corporate representative is speaking for the company.

You should anticipate that opposing counsel will ask how you prepared for the deposition – including what documents you reviewed and who, if anyone, you spoke with in preparation for the deposition. Similarly, opposing counsel will request a copy of any notes you bring into the room, so witnesses rarely bring such notes.

Individuals giving depositions are sworn in under oath and any information shared must be the truth. Remember – the “true” audience for the deposition is the judge or jury and everything spoken at a deposition stands to impact the outcome of the case.

3. Understand the Nuances of Questioning

First, make sure you understand the question before giving an answer. Do not guess at what was meant by the question. Answer every question truthfully and answer only the question being asked. If the first words about to come out of your mouth are “I guess” or “I think,” your answer is almost certainly off to a bad start.

Second, less is more in a deposition. Most deponents understandably feel this is the first opportunity for them to tell their story, and they want to tell it. But that’s not the purpose of a deposition. It is common practice for opposing counsel to fish for something that may lead to a new line of questioning. The old adage goes, “When someone asks you for the time, give them the time. Don’t tell them how to build a watch.” The purpose is only to answer the questions you are asked. You cannot win a case during a deposition, but you can certainly lose one.

Third, lawyers can ask leading or open-ended questions. Count on your attorney to decide whether you should answer a question and wait a beat to see if your attorney asserts an objection before you give an answer.

Fourth, there is a distinction between “I don’t know” and “I do not recall.” The first means that you do not know the answer, you never knew the answer, and you will never know the answer. The latter means that you do not recall the answer at that moment, but you might recall the answer in the future. The difference is important if you ever have a reason to change your answer – for example, you might recall a date or a meeting after reviewing your calendar or someone’s name after seeing an email.

The last point to note is that depositions are tough and the worse you feel, the better you likely did. It reminds me of exams – the students who thought they aced the final were usually at the bottom when grades came out because they didn’t know what they didn’t know.

I hope these tips provide a useful glimpse into what to expect if you ever find yourself on the hot seat – and help you to avoid the same fate as those students.