Tips for Your Wrongful Termination or Personal Injury Case Deposition 

Dear Client,   

Deposition is a critical part of many, of not most, kinds of civil cases, including personal injury, wrongful termination, discrimination, retaliation and other kinds of employment cases. Deposition is an out of court testimony under oath. The purpose of your deposition is twofold: first, it's for the other side to get your version of the events; secondly, is to try to catch you on a lie or portray you in a less than favorable light, so that later, if and when the case goes to trial, your testimony can be used against you during the trial itself. 

Usually, your deposition will take place in the office of the opposing counsel, representing the employer / the insurance company. Your attorney will be present with you, taking notes, making the appropriate objections and and cross examining you at the end by asking his own questions, if necessary. The opposing side's representative, such as insurance adjuster, or any other person representing 

If you are not our client, I hope that your attorney met with you in-person 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. This is especially true in employment cases, which are by their nature more challenging due to the frequent need to prove motive and intent.   

Below are useful, practical tips for your deposition. They are all based on my actual, prior experience taking and defending depositions. Please go over them several times shortly before the day on which you will be testifying at your deposition: 

• 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.
• If your termination has nothing to do with your peformance, don't let questions about your performance rattle you. If you were terminated for exhausting medical or disability leave or for some other reason that has nothing to do with your performance, don't let the employer attorney's questions about any performance issues throughout your career with the same employer bother you, as it will be hardly relevant to your case.
• 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.
• Communications with present or former employees. If you are asked about whether you had any communications about the case with the employer's present or former employees, be completely honest and upfront. This especially applies to the defendant-employer's present employees, who will surely not want to jeopardize their relationship with the management and their employment by lying about their communications with you.
• 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. It's easy and it would be very tempting for you to get caught up in all the things that make you feel angry and that make you feel like you have been hurt or treated unfairly, but often these issues have no or at most marginal legal relevance to your case. One of the biggest challenges that Plaintiffs have is separate what's unfair from what's illegal. This is especially critical in wrongful termination cases.
• 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?" 
• Be ready to explain how you got a hold of certain documents (employment cases only): If you have e-mails and other documents in your possession that you are using in your case that you copied prior to being fired be ready to explain how and why you obtained those documents. It's perfectly fine to say that you copied or forwarded the documents to your personal e-mail because you were suspecting that you will be retaliated against and you will be terminated and wanted to protect yourself in case you had to take legal action or dispute your termination, unless of course your company had a strict policy against fowarding work e-mails to your personal address, in which case you have to discuss with your attorney how you should handle these kinds of questions at your deposition.
• 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.  
• Don't promise to provide any documents that you don't have. There is no need for you to say that you don't have certain documents but that you can get them and provide them to the opposing attorney. If you want to provide additional documents, you should discuss this with your own attorney privately.
• Know how to handle bad e-mail you sent. If presented with an e-mail or multiple e-mails during your deposition that make you come across as rude, don't get defensive and don't make excuses. It's best if you acknowledge that you reacted emotionally when you probably shouldn't because of whatever circumstances, and at that time you should have chosen different words. 
• Don't exaggerate. Remember, your deposition is your sworn testimony and it will be taken and used literally in the future proceedings. One time, when my client was asked details about a certain event, she said "I don't remember. It happened moons ago" in reference to something that happened less than two years ago. Needless to say that "moons ago" normally refers to something that happened in a far more distant past. 
• Avoid prefacing your answer with "to be honest with you,"  - deposition is your testimony under oath. You must be testifying truthfully and of course everything you say must be honest. Even though it's a perfectly common and normal way to speak that way in most conversations, when it comes to legal proceedings and your testimony it might send the wrong message, as it almost implies that sometimes you are not being honest. Otherwise, why would you have to emphasize it before you say something.