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DEPOSITION TIPS TO SUCCEED WHEN YOUR BUSINESS IS DEPOSED

Posted by Aric S. Bomsztyk | Dec 20, 2018 | 0 Comments

In a lawsuit, including a lawsuit between businesses, parties have a right to compel witnesses to sit down before a court reporter, be sworn in under penalty of perjury, and to answer questions posed to that witness by an opposing attorney.  This procedure is called a “deposition”  If your business is sued, or sues another person or business, your business' owners and employees can be deposed. 

Being prepared for a deposition is crucial.  The first thing to prepare for a deposition is to understand why the other side might want to depose your business' owners or employees.  The reasons, generally, are as follows: 

  1. To obtain information that they don't have 
  2. To understand how the witness would perform at trial (i.e. is the witness smart, truthful and would a judge and/or jury “like them”)
  3. get statements/confessions from the witness that the other side could use against your business at trial. 

With that in mind, ten general deposition tips follow below:

  1. The other lawyer will likely begin by giving your business' witness some basic instructions about how depositions are conducted.   The “ground rules” so to speak.  The witness should consult with your attorney to ensure that the “ground rules” provided to them at the depositions outset were correct.
  2. Your businesses attorney will be there next to any witness related to your business.  They may object to certain questions, but the witness will still be required to answer the question unless your attorney actually instructs the witness not to answer the question.  Remember, depositions can cover a broad ground and there are very few times an attorney can legally instruct a witness not to answer a question.  
  3. The witness must keep their answers short.  If anything, this is the Number 1 concern.   If the witness says more than three sentences, they have probably said too much.  Witnesses do not need to provide a lengthy detailed answer to any question-and, worse, stray off topic.  If your business' witnesses keep their answers short, keep their answers on point and don't stray off into a plethora of details, you deprive the other side of statements/details that they would use against you at trial.  
  4. Before answering any question, the witness should remember to look straight at the attorney asking the question, pause at least two or three seconds to think, and then give a short, concise answer politely and calmly.
  5. The witness should not speculate or guess.  Witnesses should only answer only from personal knowledge.  If the witness doesn't know the answer, they should say that they don't know the answer.   Nobody expects anybody to remember every fact of their life. Often, the truthful answer to a question begins with "To the best of my knowledge at this time."
  6. The opposing attorney may act very nice, and the witness should be polite, but always remember: their duty is to try to help their client by weakening your businesses case.
  7. It very likely that your business attorney will not ask their own witness any questions.  Your business attorney is there to protect your witnesses from improper questioning. Remember: this is not the place to tell your business' story, but only to give answers to the questions posed.  Your business will have their full chance at trial to tell their story
  8. One tactic some attorneys use is to say "Well, is it fair to say that . . . ?" If the other attorney uses this tactic and attempts to summarize parts of your witness' answer, the witness should listen carefully and not agree unless it is exactly true in all respects; if not, the witnesses should state that they do not agree with the other attorney's summary.
  9. The witness should dress neatly. The best outfit is comfortable business attire.
  10. The testimony must be truthful. The witness should tell the truth, the whole truth, and nothing but the truth, but only in response to questions, and with short answers.  In sum, the mantra is “Pause.  Then short, direct answers.”

About the Author

Aric S. Bomsztyk

Partner - Mr. Bomsztyks practice encompasses all aspects of small business representation including incorporation, financing, contract/lease review, negotiations, dispute resolution, and litigation. Mr. Bomsztyk represents a wide variety of business including internet startups, general con...

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