A deposition is one of the most important parts of a lawsuit. Studies
show up to 97% cases settle at or near the time of trial. This is right
after depositions have occurred. Although very few people ever go through
a deposition it is crucial that those that do use the following principles
for success. It is my sincere belief that the reason why we are so successful
in our cases is because our clients are ready for their depositions. Read
on to see a common problem.
Dear Attorney Cheng, my deposition is going to be taken shortly. I am
so scared. The attorney that we hired said that it will be an easy process.
I went through a deposition in Taiwan and it was horrible. Can you please
advise me what to do? By the way, this is a patent infringement case.
Mercedes – Bakersfield
Dear Mercedes – I appreciate your question. Depositions are very
difficult. It does not matter what area of law the deposition occurs in.
However, if handled correctly, the following steps will lead to a successful case.
1.In every deposition the attorney will ask you did anything happen to
you recently that would affect your ability to answer truthfully or perform
competently during the deposition. The answer should always be: “YES.”
The reason why this is important is because there is not one person in
the world (apart from experts that give answers in depositions) that will
have perfect the day of the deposition.
2.Understand the purpose of a deposition is to get you to answer things
as clearly as possible. There would be no purpose of the deposition if
the attorney cannot get to give a final answer. Hence, when an attorney
asks a yes/no answer think about what the attorney is asking. If the answers
leaves you with no further explanation, then you need to be careful. In
my opinion, you always need to leave yourself an out in case you need
to change your trial if the case goes to trial.
3. Don’t guess at the question. Always wait until the attorney finishes
the question before answering. No matter what, you will never be smarter
than the attorney because you do not know what the attorney is thinking.
4.The Court Reporter does not take down emotions. Very few depositions
are taken by video. Almost all are done by a person typing down what the
person is saying. Hence, emotions, such as anger and confusion, cannot
be understood. The eventual outcome of a deposition is in a book form.
Just a like a book, it is imperative for you to state something, explaining
what you mean, if you feel it. For instance, if you don’t understand
a question, don’t just frown and answer. Specifically state: “I
don’t understand your question.” If the attorney is being
abusive. For instance, standing over you or speaking in a loud tone, specifically
state: “Why are you standing over me, why are you yelling at me.”
5.Object when you feel that something is wrong. Attorneys are people too.
They make mistakes. One time, I was taking a deposition. My partner was
a very pretty woman. As I was asking the questions, which were completely
objectionable, the other attorney was so in love by the female attorney
I was able to win the case without a fight. Hence, if something is wrong,
object to it. If you are doing something wrong, your attorney will pull
aside and tell you.
6.Understand that you control the deposition. The attorney will frequently
try to make it seem that you, the deponent, are entering into a mysterious
world that only the attorney controls. That is not true. If you refuse
to talk, there is no deposition. Hence, if you feel sick, if you feel
confused, always ask to take a break. There is no shame in asking for
time. The attorney will try to force you to stay. Frankly, there is no
law that says you must absolutely stay. Can you imagine how outrageous
it would be for an attorney not to allow you to go to the bathroom when
your stomach is aching!?
7.Understand the elements of the law. Frequently, attorneys make clients
feel that only they know what needs to be proven. That is not true. Eventually,
if the case does not settle the people that you will have to speak to
about the law are also non-attorneys. If your own attorney cannot explain
to you the law, how can he/she explain the law to the jury?
Depositions are very important events that can make or break your case.
After reading this, I know you will do great.