By Carole Lieberman, M.D., M.P.H., Forensic Psychiatrist/Expert Witness
Part 1 of a 3 Part Series
As a Forensic Psychiatrist/Expert Witness for over 20 years, I have had the opportunity to review countless deposition transcripts and videos. Whether retained by the plaintiff or defense, I have not ceased to be amazed at the incredible, costly and sometimes ‘fatal’ mistakes that deponents make. I sit alone in my office, shaking my head in disbelief, silently asking the deponent, “What were you thinking?”
Here’s a list of the top 10 mistakes. You may want to provide this list to your clients, to make sure they don’t make any of them:
1. INAPPROPRIATE ATTIRE – You should always wear conservative professional attire to a deposition, whether it is being videotaped or not. It creates an impression about your credibility that speaks as loudly as your words. One of the most flagrant examples of inappropriate attire is the female deponent alleging that her intimidating boss sexually harassed her. She cries, she claims to be chaste, a mother who would never cheat on her family… all the while wearing a tight skirt and sweater with a plunging neckline. Seemingly unaware of how seductively she is dressed, she immediately casts doubt on her allegations that the advances weren’t provoked or consensual. Similarly, a male defendant in a sexual harassment lawsuit, who comes in wearing lots of flashy gold jewelry or a tight muscle shirt, alerts people to his desperate need for reassurance of his masculinity.
2. CLOUDED MENTAL STATE – It is likely that you will become anxious as the deposition approaches, especially if this is the first time you are being deposed. But to anticipate the big moment by playing doctor is a big mistake. Don’t self-medicate by drinking alcohol or taking pills to sleep or calm down. These will cloud your thinking, impair your memory and cause you to make errors of judgment. At the beginning of a deposition, the opposing attorney will ask if you have taken anything in the last 24 hours that could interfere with your testimony. It would obviously hurt your credibility if you said that you were out drinking the night before, or you took Valium that morning. At trial, the attorney could try to impeach your character or claim that you were overly nervous about the deposition because you had made up the allegations or you were guilty of what is being alleged. Medication is only legitimate if you are seeing a psychiatrist who has been prescribing it for you, and not just for the deposition. Prepare to be your most alert by starting, a month before the deposition, to get into the daily habit of sleeping eight hours, taking vitamins and exercising.
3. LYING – This is the mistake that gets deponents into the most trouble, and indeed becomes the ‘fatal flaw’ of a case. If your attorney insists that you lie about something, claiming that the jury wouldn’t understand and would think badly about you, get another attorney. It is always better to tell the truth – even if it seems damaging – than to lie. You or your expert witness can explain the circumstances to the jury, so that it is not damaging. In fact, showing the jury that you’re human can make you seem more sympathetic to them. Many deponents think they can pull the wool over the opposing attorney’s eyes, the jury’s eyes and even their own attorney’s eyes. They come up with the most ridiculous lies, and convince themselves that if they say it with a straight face, everyone will believe them. If you lie, you will be in for a big surprise at trial when surveillance tape or a witness or some document proves that you lied. Then it’s too late for anyone to salvage your case.