By Carole Lieberman, M.D., M.P.H., Forensic Psychiatrist/Expert Witness
Part 2 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 the next part of the list of the top 10 worst mistakes people make when they’re being deposed. You may want to provide this list to your clients, to make sure they don’t make any of them:
4. SELF-CONTRADICTION – Similar to lying, self-contradiction will sink your case. If you have said one thing at the beginning of your deposition and then contradict yourself later on, the opposing attorney will bring this up at trial to show that you cannot be trusted to tell the story straight and should not be believed. If, during your deposition, you realize that you made a mistake earlier on, then you can correct yourself and it will be less damaging than trying to pretend that you did not just give the opposite answer an hour or a day before. Each self-contradiction sinks your case deeper.
5. BE PREPARED – Whether you are the plaintiff or the defendant, you need to be prepared. This may include making a calendar of significant events, or taking notes to remind you of important facts. Make sure you show these to your attorney well ahead of the deposition, so that he can decide what is confidential attorney-client work product and what is material you should bring to the deposition. You also need to meet with your attorney so that he can prepare you for how depositions are conducted and what questions you will likely be asked. You should practice answering these questions with him, so that you won’t be as nervous at the actual deposition.
6. DEFENSIVENESS – A deponent often feels like a little kid sitting at the adults’ table, small and unsure of yourself, while everyone else in the room seems like they know what’s going on. A normal reaction to this insecure feeling is to become defensive to pretend that you’re more in control than you actually feel. For example, some deponents boast about their accomplishments, make jokes so everyone laughs with them, try to control the documents and not share them, and so on. These tactics, although perhaps partly unconscious to you, are obvious to everyone else in the room. Watch for your tendency to overcompensate for feelings of insecurity.
7. DON’T TRY TO MAKE THE LAWYER YOUR FRIEND… OR YOUR ENEMY – Your personality and your experiences with authority figures in the past (especially your mother and father), will determine your feelings and attitude towards the opposing attorney. You want to de-claw him, but how? You may try to win him over to make him your friend, or try to show him you’re more powerful than he is, making him your enemy. Neither strategy works. Nor does it work to be seductive towards him, either sexually or with vague hints of what you can do for him. These strategies will always backfire, since the opposing attorney has much more to lose if he seems to be falling for your tricks, and making him your enemy will just spur him to work harder to win their case.