Law Office of Arkady Itkin 

Dear Client,   

By now we have already met and went over your upcoming deposition. If you are not our client, I hope that your attorney spent at least 2 hours of in-person time with you, to prepare you for your deposition testimony, as this is usually the most important part of the case. If your attorney hasn't done so, insist on having that time, as being well prepared for your deposition will likely make a big difference to the outcome of your case.  

Below are quick tips to summarize and emphasize some of the important rules for your deposition. Please go over them several times shortly before the day on which your deposition is taken: 

• Your goal at the deposition is to answer questions; not to argue or prove your case. Resist the urge to argue or try to convince the deposing attorney that you are right and his/her client is wrong. This is neither your job nor their job at the deposition. Your only job is to answer questions, and most of them can and should be answered with a "yes" or "no" answers. Thus, the answer to the question "Isn't it true that you were late 3 times to work over past months prior to being terminated?" is "Yes" if it's true, and not "Yes, but I also early 5 times during the month before that." The latter part is completely irrelevant and will only make your deposition last longer. 
• Never, ever provide false information on purpose or by mistake. This might sound like a trivial and obvious tip to you, but it's not. Even when we don't intentionally provide false information, we sometimes have a tendency to suggest our own version of the truth, so to speak, which differs from the objective recount of events. One glaring actual example from my past is where my client was testifying as follows: "I never threatened my boss; I only told him on the phone that I didn't know what I was going to do to him when I was going to see him in person." I don't know how about you, but this sounds like a threat to me. Don't make the mistake of saying something that is objectively false just because you wish things were the way you want them to be. If you do, the other side will most certainly use that information to make you look like a liar later, even if it was an innocent mistake on your part. Instead, answer "I don't remember" or "I don't remember exactly but I think it was about..." 
• It's best to remember as much detail as possible about the events that give rise to your case, but it's perfectly ok not to remember everything.  For instance, if you don't remember when the accident happened exactly, a good answer would be "I don't remember the exact time, but I think it was between 2 and 4 pm." This is a much better answer than saying "it was 2:38 pm" when it turns out later that it was 4 pm. Or if you are asked how many times were you disciplined for being late to work, a good answer is "I don't remember exactly, but I think it was about 5 to 8 times." This is a much better answer than saying that you were only disciplined once, to only have the employer pull out 5 write-ups for your tardiness sign by you a minute later. Of course, if you are absolutely sure of the answer to the question asked, then you can answer it without the "I am not sure" or "I don't remember" preface. Don't forget that the attorney who takes your deposition and his firm are paid many hundreds of dollars per hour to dig information on you and to find inconsistencies between the documents and your testimony, so if you provide information during your deposition that is not correct, it is very likely that the other side will know it and will try to capitalize on that. Your credibility is arguably the most important part of your testimony and your case. If you provide false testimony, whether on purpose or by mistake, and it is read in front of the jury or the judge, it's very likely the they will not believe anything else that is coming out of your mouth, even if the false information in question is not really relevant to your case.  For instance, if you state that you graduated from college, and you didn't (let's say you dropped out during your third year), this will be a false testimony that can be used against you in any case to impeach you in court. 
• If you do not understand the question that's being asked, ask the opposing counsel to repeat, rephrase or clarify the question. It goes without saying that it is very important that you understand the question you are being asked before you answer it. Do not assume that you understand what the question implies or that you know how to interpret it. If the question seems to be ambiguous, request clarification. 
• Do not answer questions that are too broad. Questions such as "what happened next?" or "what did you do then?" are too broad and objectionable, and you should not be answering them, as they call of a narrative , rather than an answer that you should be providing. Instead, respond with "can you be more specific?" or "what do you mean by next?"  
• Answer the question which was asked, and then stop talking. Listen to the questions asked carefully, even if they sound obvious, simple and predictable. Only answer the question asked and as soon as you answered, stop talking. For instance, the question "when were you terminated" only calls for one thing - the date of your termination. It does not call for any information on who terminated you, why and whether it was fair or not. Don't feel the need to continue talking just because the attorney who is asking you questions is being quite and is listening to you. Don't explain or argue. This is not your time to argue why you are right and the opposing side is wrong. You are only there, at the deposition, for one reason - to answer questions. Remember, whatever you do not say cannot hurt you and your case. Some people have the urge to say as much as the possibly can, as if they were facing a jury or a judge. However, your deposition is not the time to argue or be very convincing. You are only there to answer the questions asked clearly and truthfully. 
• When answering questions, do not describe your mental process of how you arrive to your answers. For example, if you are asked where the accident occurred, the answer is "at the intersection of Mission and 22nd street", not "let's see, I was driving from my work to the grocery store on Valencia street because I had a fight with my boss so I left work early to get a drink, and then I turned left on 22nd street, etc..."  Or, if you are asked: "How much were you making at the time of your termination"  - the answer is not "I was such a great employee that I have been promoted 4 times, and got 5 raises....." The right way to answers is to simply state the most recent wages per month or per year.  
• Do not overstate or exaggerate your injuries and damages. An injured plaintiff who sustained moderate injury should not act like he lost a leg in a war combat or sustained a traumatic brain injury and was in a coma for a week. This kind of "victim mentality" will necessarily backfire. When you feel sorry for yourself, there is a tendency among others (jurors, judges, insurance adjuster, opposing counsel, etc...) not to feel sorry for you. Almost no discrimination or wrongful termination case should make you sound like you lost a limb or was a hostage in a hostile country, especially if you are a healthy looking, strong, young person. Let the other side determine how bad their client's conduct was based on your factual testimony, and come to their own conclusion about the strength of your case and its emotional appeal. If you are asked by the deposing attorney how much you think your case is worth, a good answer is "I do not really know. I am not an expert at evaluating damages." The importance of this cannot be overstated. After one of the recent jury trials, one juror told me that they would have given my client even more if we weren't asking for that much.  
• Do not smile or joke during your deposition and do not be sarcastic especially if you are videotaped. Smiling, joking and/or being sarcastic during the deposition will make it look to the opposing counsel like the whole process is a game to you and you are doing this for entertainment or for some kind fun challenge and not because you were injured and suffered monetary and emotional damages. But, it's precisely the latter that you need to convey. Therefore, you cannot go wrong by maintaining a pleasant, calm, yet very serious demeanor. Eye rolling or a cynical smirk on a video looks really bad, especially when the other side takes just that one part of the video and shows it to the jury at trial. 
• Do not let anything destabilize you emotionally during the deposition. If the deposing attorney falsely accuses you of something, the right answer is "no" or "I didn't do it"; not "How dare you! I am walking out of here." If you are asked a question that you feel is too personal or offensive, politely and calmly say "I would rather not answer this question." Generally, the other side is entitled to your best answers to all questions (with narrow exceptions defined by law) so this should not really come into play. Also, if the lawyers who is asking you questions gets confrontational or argumentative, don't try to match his anger or attitude with your own.  In fact, not reacting is the best way you can show your strength and your power to the other side. 
• Do not testify that you are worse off today than you were shortly after the events that give rise to your case.  Whether it's a serious injury accident, or an egregious discrimination or harassment case, it is excepted that the resulting physical and emotional pain symptoms subside. Some people recover faster than others. Testifying a year or more after the event that you are feeling exactly as much pain as you felt the day after the incident or even worse will make the other side very skeptical of your injuries and will make you lose credibility. Experienced attorneys who represent employers and insurance clients love to probe plaintiff's attitude, with questions such as "Are you feeling any better today than you did right after the event?" which is a bait for the wrong answer, such as "oh, no, I am just in as much pain as I was back then." 
• Don't allow the deposing attorney to "close all the doors" unless you are absolutely sure that your answer is full and complete. One of the very important jobs of the deposing attorney is to "close doors" on your testimony - to get you to provide full testimony on a particular issue and exclude the possibility of you adding anything in the future. For instance, an attorney might ask you: "Have you now told me about every single incident of harassment/discrimination?" or "Have you now told me about every single pain symptoms you had as a result of your accident?" If you answer yes to these kinds of questions, adding new facts when answering the same questions at trial will make you sound untruthful and inconsistent. Thus, if you are not absolutely sure that you provided all the responsive information regarding certain allegations, instead of answering "yes", say "that's all I remember now, but there could be more than I can't think of right now" or something along those lines. 
• Don't speculate.  This mostly applies to employment cases. If you say: "They were out to get me" or "They framed me" or "They hated me" or any other statement that suggests that you can read someone else's mind, you better be ready to explain how you know that. Usually, it's impossible to support such a statement because we obviously can't read other people's mind. That's why you are much better off testifying about the events rather than other people's thoughts and intentions, unless of course they shared their thoughts with you. For instance, in an age discrimination case, it's much better to testify that your manager repeatedly asked you "Isn't it time to retire?", than to simply say that he didn't like you because of your age. 
• Keep your handwritten notes to yourself. If you have notes that you made which are in any way relevant to the facts of your case, damages you suffered as a result of the case, etc.... be ready to produce them to the opposing side. The attorney will most likely ask you sometimes in the beginning of your deposition whether you have any notes that you took at any time that are related to your case, or whether you maintained a calendar / planner during the events or at any time after the events took place. Unless there is something helpful in those writings to your case, you are better off stating that you don't have any such writings, so you don't have to produce those writings to the other side. If you later find useful writings that you would like to produce, you can supplement your responses and produce those documents in most cases. 
• The answer to the deposing attorney's questions is not always "yes." Just because the deposing attorney is asking you "Isn't it true...... ?" doesn't mean you have to answer "Yes." Listen to the question carefully and do not agree with something which does not sound true. Do not allow the opposing counsel get you to admit things that you don't agree with and put words in your mouth.  
• Don't allow the deposing attorney to summarize your testimony incorrectly. Sometimes, during the deposition the attorney might say: "earlier your testified that......" as a way of introducing a new question. Listen to that first part, summarizing your earlier testimony carefully. If it's incorrect, or not exactly what you testified to earlier, make sure you state so on the record, so it doesn't look like you implicitly agree to that summary because you move to answer the question without commenting on way the way the opposing attorney summarized your prior testimony is incorrect.   
• Resist the temptation to criticize all your managers. During your deposition, you might be asked what you thought of each and every one of your managers. Criticizing each and every one of your managers might make you look like someone who is never happy or someone who always blames others for problems. It's ok to criticize some of your management but it's equally or even more important to point out that you got along with some of the members of the management and that you thought highly of them.  
• Do not fall for common traps -  one favorite way of experience defense lawyers to make the Plaintiff look bad is to create an impression that Plaintiff is an arrogant person. This is more common in employment case. For instance, if you are asked whether you were a perfect employee, and you answer yes, it will look bad, even if you were a great employee, because no one is perfect, and it's socially expected that you would acknowledge that you would have space for improvement.
  
• Know how to deal with the "could it be?" question? Sometimes, a lawyer would ask you a question to which you don't know the answer, and then he would follow up with the "could it have happened?"  If you answered that you don't know to the original question, you should give exactly the same answer to the "could it be" question. For instance, imagine the following exchange: q: Were you late to work 14 times during the past year of your employment? a: I don't know. q: Could it be that you were late 14 times during the past year of your employment?  - a: the right answer here is "I don't know" if you really don't know. There is no need to speculate whether the number given to you is correct, if you have no basis for knowing or remembering. In fact, if you can estimate, you should do so, but you are not supposed to be speculating on something you really don't know. 
• Don't let your fatigue or impatience affect your answers. Often, during long depositions, when you get tired, you will notice that you become impatient or even irritated with questions, many of which seem to have nothing to do with your case. In such situations, the deponents often say "I don't know" or "I don't remember" even if they do know and even if they do remember that information which would be useful to their case. This is damaging to the case and you should not let this happen. The best way to deal with it is to ask for a break if you are tired, and get something to eat and drink if you need to. Ideally, you should take 10-15 minute breaks every hour of your testimony anyway, but if you need a break more often than that, you should not hesitate to ask. Remember, your deposition is not a Guantanamo Bay interrogation. It's just your testimony in a civil dispute.  
  
• Insist that your attorney explains to you the basic law that applies to your case. Even thought it is generally improper for the deposing attorney to ask you what laws their client has violated, it would still be very useful for you to understand the legal elements of your case. Do not be intimidated by long words. Ask your attorney to explain to you in plain language what legal violations you are suing for and how the law applies to the facts of your case. Having that big picture in your mind will be very helpful to you when you testify. 
• Insist that your attorney meets with you in person to prepare you for your deposition. I don't care what materials your attorney lets you use to prepare for deposition (books, articles, videotapes, audiotapes). You must meet in person to discuss your case, your upcoming testimony and the challenges you are likely to face. Your attorney must do what he can to eliminate any surprising or difficulties you might be facing at the deposition. No case is perfect, and there is always a way to spin any argument you make against you. The better you are prepared at what might be coming at you, the better impression you will make on the opposing counsel, which in turn will result in better settlement or better verdict at trial. And if your attorney is too busy to meet with you before your deposition, then request that it be postponed until you can have that meeting. 
• If you are asked whether you agree with a certain statement and you are not sure whether you are able to answer or have the knowledge to answer, it's perfectly fine to state that you neither agree nor disagree. This especially applies to questions that all for a medical or other kinds of expert opinion. For instance: "do you agree that this medication did not cause any side effects?" or "do you agree that the defendant did not discriminate against you?" 
• Do not demonize the defendant and give him/her credit when due. In litigation, and especially employment cases such as, wrongful termination and discrimination claims, the employee and the employers are rarely 100% right or wrong. Thus, if the employer has done something right, and you are called to testify to that, acknowledge that. Consider a common disability discrimination and failure to accommodate case where the employer has taken some steps to accommodated a disabled employee but might not have done a perfect job and did not fully comply with the law. I.e.  - perhaps an employee was offered an ergonomic chair, a special keyboard or other assisting device but was denied request for reassignment to a different position when was vacant. If the opposing counsel asks you: - "Isn't it true that your employer purchased an ergonomic chair for you?", the right answer is "Yes". The wrong kind of answer is "No", as it's simply not true, or "Yes, but he denied my reassignment", as it is partially non-responsive to the question and demonstrates a degree of resentment on your part that does not serve you well.