Tips For Preparing Your Executive Team For Deposition

Posted by Hecht Walker, P.C.
Posted on June 23, 2016


If you are a business owner or a corporate executive, you already know that a “deposition” is out-of-court, oral testimony. Depositions are a part of the discovery process in which both sides gather information in preparation for a trial. Depositions are commonly used in litigation and are almost always conducted outside of court by the lawyers themselves without a judge’s supervision. Of course, every business owner or corporate executive in Georgia should already have the advice and services of an Atlanta business attorney who can help.

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Depositions are usually conducted at the office of the court reporter or in the office of one of the attorneys or law firms involved in the case. However, depositions are also sometimes conducted at a witness’s workplace or home or in a nearby hotel’s conference room. Usually, a deposition is attended by the person being deposed, that person’s attorney, the other side’s attorney(s), a court reporter, and others who may appear in person or be represented by their attorneys. All parties to the action and their attorneys have the right to be present and to ask questions at a deposition.

HOW DOES A DEPOSITION DIFFER FROM OTHER SETTINGS?

If you are a corporate executive or a business owner, you may be a gifted public speaker, confident in front of audiences and at board meetings. But sitting in a deposition under the examination and scrutiny of a savvy, experienced trial attorney is a completely different kind of setting. Your carefully-rehearsed testimony could send your case spiraling in the wrong direction. Careful and early preparation can help avoid unanticipated questions and surprises in depositions. Here are some key points for corporate executives and business owners to consider.

First, admit to yourself that testifying is not a natural act. It’s not like an employee luncheon where you can simply breeze in with confidence and say a few words off the cuff. Testifying in a deposition is more like trying to speak to people in another country. The environment is constraining. Ask yourself how you feel about testifying. Is simply having to be there an aggravation? Are you afraid you might look foolish, or that you might even wind up demoted or terminated? The first step in a deposition is being brutally honest with yourself.

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WHAT IS THE PURPOSE OF A DEPOSITION?

Secondly, understand that the success of the case does not rest solely on you. Everyone has a part in the case, and your part is but one piece in a larger scenario. Thirdly, be sure that you fully understand the purpose of your deposition. It’s not your job to offer all of the information you have about a case. A deposition is a fact-finding opportunity for the other side. Answer the questions precisely, and if the other side’s attorneys do not ask for a specific piece of information, don’t provide it. Volunteering information unnecessarily can potentially point to weaknesses in your case that the other side can exploit.

Next, become aware of the various strategies and tactics that opposing attorneys use. One strategy is the pose of the “friendly” opposing counsel. Longtime Modesto personal injury lawyer Jeff Nadrich suggests the attorney may actually be a nice person, but if the niceness is directed at you as a witness, it’s probably just a strategy to catch you off-guard. If you anticipate a contentious encounter, and instead you are greeted warmly, the opposing attorney is hoping that you’ll you drop your guard. Don’t. Litigation Insights, a legal consulting firm, offers these suggestions to business owners and corporate executives who are being deposed:

  • Don’t have chatty conversations during breaks or when the camera isn’t rolling. Opposing attorneys use these opportunities to gather information that can later be exploited.
  • Watch out for long pauses or the pose of “bumbling” and delaying. Attorneys know that witnesses tend to fill in uncomfortable pauses with additional details.
  • An opposing attorney may play dumb as a tactic. Attorneys are never confused during depositions – they’ve done their research. The tactic is an appeal to vanity, as if the attorney is pleading to be “educated” by the witness. Don’t fall for it. You may disclose unnecessary details.
  • Stay calm. Don’t let a surprising remark by an opposing attorney make you defensive and make you say more than you need to say.
  • Don’t be overly prepared. If you provide thoroughly canned, well-rehearsed answers, your credibility might be questioned. There’s a presumption that “scripted” witnesses have been “told what to say.” Be as natural as possible under the unnatural circumstances. Of course, it’s imperative to anticipate what will be asked and to rehearse your testimony, but it is equally imperative to retain some sense of spontaneity while you are being deposed.
  • Be ready to answer the tough questions. The wrong answers could discredit your testimony. You do not want to avoid or dance around tough questions. What you want to do is to answers those questions directly, firmly, and without hesitation. Make a list of the toughest possible questions an opposing attorney might ask, and have sound, direct answers ready.
  • In business and corporate litigation, make sure – or have your attorney make sure – that none of your company’s other employees will be offering testimony that contradicts yours in any way.

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HOW SHOULD SOMEONE PREPARE FOR A VIDEO DEPOSITION?

Video depositions are standard practice today. Trial jurors and others may see the video of your deposition, so you’ll want to keep these additional recommendations in mind when you give testimony that’s being recorded:

  • Give short, precise answers.
  • Appear knowledgeable and speak with confidence, but also be humble, not boastful.
  • Maintain eye contact, be well-groomed and wear attire appropriate to your position.
  • Be entirely familiar with any documents in question or any documents that could be presented.
  • Try to avoid words or phrases like “I think,” “I believe,” “maybe,” or “perhaps.”
  • Don’t wring your hands, fidget, or play with your glasses. These gestures indicate nervousness.
  • Know when to say “I don’t know.”

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Have your own attorney make certain that the video is set up so that it is clear to viewers that you are directly addressing the attorney who is questioning you. A witness who frequently looks off camera in a video deposition gives the appearance of being uncertain, or worse, the appearance of being coached. A deposition is unlike any other situation. It requires hours of preparation, and then you have to appear spontaneous. Don’t be intimidated. Help is available.

If you are a business owner or a corporate executive, and if you are expected to testify at a deposition in the state of Georgia, you may choose to seek help and advice from your own attorney, from an experienced Atlanta business attorney, or from another lawyer near you. Find someone who can be neutral and objective, and someone who has extensive experience handling depositions.

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