By Carole Lieberman, M.D., M.P.H., Forensic Psychiatrist/Expert Witness
Part 3 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 final 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:
8. DON’T KNOW / DON’T REMEMBER – “I don’t know” and its twin “I don’t remember” can be false friends. Usually you stumble upon them in a deposition and get this liberating realization that you can seemingly avoid answering a question when you use them. Although they can sometimes be legitimate answers, it is dangerous to keep repeating them to feel the high of avoiding hard questions. These answers are like waving a red flag in front of a bull, or an opposing attorney. He will ask increasingly pointed follow up questions in increasingly annoyed tones of voice. And you will damage your credibility, since no one is gullible enough to believe that you “don’t know” or “don’t remember” as many answers as you would like.
9. KNOW THE COMMON LAWYER TRICKS – The opposing attorney, having been at many more depositions than you, has a bit of an advantage, just as you would have if they were in your place of business. Their experience has taught them how to get deponents to trip themselves up – even when you think you have nothing to hide. For example, they may pretend to be your buddy so that the deposition seems like nothing more than a chat over coffee, or they may be intimidating, or they may pause so that a long silence follows your answer. In each of these scenarios, their purpose is to exploit your natural desire to be socially accepted, so that you turn into a people-pleaser, dropping your guard and chattering on. The more you talk, the more you may inadvertently stumble onto something that helps their case. Answer each question completely, but succinctly.
10. DON’T BE AFRAID TO TAKE BREAKS – A deposition is not a marathon. You do not get any prizes for not asking to take a break if you are feeling hungry, have to go to the restroom, need to ask your attorney a question or just need a time out. If you are not feeling comfortable, you will not be able to give your best answers. Obviously, you can’t abuse this by asking to take breaks every ten minutes, or when you have just been asked a question and the question is still pending. But many deponents feel embarrassed to express their needs and try to stoically struggle through. This is not helpful to anyone. At trial, saying that you made a mistake in your deposition because you were hungry, had to use the restroom or were tired sounds pretty lame. Don’t let embarrassment over natural human needs cause you to lose your case.
So, now you know everything you’ve always wanted to know about depositions… but were afraid to ask. No matter what happens, you will survive. Most of all, remember to tell the truth. And be aware that a friendly smile goes a long way… it’s very disconcerting to the opposing attorney! Good luck!