One of the toughest parts of civil litigation, whether as a Plaintiff bringing the case or Defendant, is handling a Deposition. Depositions are part of “Discovery” between parties and will come after parties have served their pleadings (Complaint/Answer) and usually after they have exchanged written discovery. It is the chance for the attorneys to not only obtain information from the opposing party but evaluate the believability and presentation of the opposing party. Attorneys will usually depose other witnesses beyond the parties to the lawsuit, but the deposition of the Plaintiff or Defendant is critical to litigation. In South Carolina, once the deposition has started, you cannot speak to your attorney until it is over. That includes not speaking to your attorney during breaks.
The attorney goes into the deposition of a party with a few critical objectives. First, he wants to know how the party will come across to a jury. Will he or she be sympathetic to a jury? Will he appear credible? Will he come across as angry? Will he lie or appear to lie? These are all things to consider when preparing for a deposition. It’s why a party should dress conservatively (presentation/likeability). It’s why a party should be prepared to stay calm if the other attorney tries to make him mad. It’s why a party should consider and ponder all the facts first before the deposition, and answer in a cool fashion (appearance of credibility). Before, during, and after the deposition, be cordial to the opposing attorney without forgetting he is opposed in interest. In other words, do not get too close in conversation while outside the deposition he picks up information he should not know.
The other objective of the attorney in the party deposition is gathering critical information for his case. That’s a reason for a party to solely answer questions asked of the attorney, and take time thinking to give clear, concise answers. Many times, a party will believe they have to talk beyond the question. The opposing attorney may learn something critical to his case when he didn’t even ask the question, or be able to use “loose” words as evidence for his case. Make the other attorney do his job.
Do not try to argue with the other attorney during the deposition and become flustered. Your attorney will have the opportunity on cross-examination to explain something you need explained more fully. Discuss this with your attorney before the deposition. For example, during a personal injury car wreck deposition the other attorney may not let you go beyond a question of whether or not you saw the other car before impact. It might be important that you be able to speak about the incident beyond a simple yes or no answer due to the specific conditions. Your attorney will give you that chance in cross-examination.
Lastly, it is critical your deposition testimony not be used to impeach you if the case goes to trial. Get the facts straight before the deposition. If you don’t know or can’t remember those become perfectly acceptable answers. Always tell the truth, and do it in a way a jury would both like you and believe you.
Bill Connor
