Deposition Tips for Employers - Defendants
Dear Client,
Your deposition is a critical part of many, if not most, kinds of civil cases, including wrongful termination, discrimination, retaliation and other kinds of employment cases. In many employment and wrongful termination cases, your deposition is the most important part of your case. Deposition is an out of court testimony under oath which has the same force and effect as court testimony for the purposes of establishing the facts of your case. The purpose of your deposition is twofold: first, it is for the other side to get your version of the events; secondly, to assess you personality, how likeable you are and how well you will do at trial in front of a jury or judge / arbitration; lastly, it 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 to show weaknesses or inconsistencies which most cases naturally have.
Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. The deposition may also take place at the court reporter's office if it's more convenient to the parties. Your attorney will be present with you, taking notes, making appropriate objections and cross examining you at the end by asking his own questions, if necessary, in order to clarify your testimony. Because parties to a case are allowed to be present at a deposition, it's possible that your (former) employee - plaintiff will be in the room. You should treat everyone with utmost courtesy, as your deposition is not the time and place for any types of confrontations.
If you are not our client, I hope that your attorney will meet with you in-person to prepare you for your deposition testimony, because, again, your deposition, is one of the most important stage of your case. If your attorney hasn't done so, insist on having in-person that time to prepare for your deposition.
Below is a list of 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:
Your deposition is a critical part of many, if not most, kinds of civil cases, including wrongful termination, discrimination, retaliation and other kinds of employment cases. In many employment and wrongful termination cases, your deposition is the most important part of your case. Deposition is an out of court testimony under oath which has the same force and effect as court testimony for the purposes of establishing the facts of your case. The purpose of your deposition is twofold: first, it is for the other side to get your version of the events; secondly, to assess you personality, how likeable you are and how well you will do at trial in front of a jury or judge / arbitration; lastly, it 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 to show weaknesses or inconsistencies which most cases naturally have.
Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. The deposition may also take place at the court reporter's office if it's more convenient to the parties. Your attorney will be present with you, taking notes, making appropriate objections and cross examining you at the end by asking his own questions, if necessary, in order to clarify your testimony. Because parties to a case are allowed to be present at a deposition, it's possible that your (former) employee - plaintiff will be in the room. You should treat everyone with utmost courtesy, as your deposition is not the time and place for any types of confrontations.
If you are not our client, I hope that your attorney will meet with you in-person to prepare you for your deposition testimony, because, again, your deposition, is one of the most important stage of your case. If your attorney hasn't done so, insist on having in-person that time to prepare for your deposition.
Below is a list of 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:
- Your task at a deposition is only to answers the questions asked. Remember, your job at a deposition is not to just sit, talk or try to convince the depositing attorney of anything. You should not be sitting and telling stories about how awful the plaintiff is, how bad of a worker he was, etc. You should be answering the questions asked clearly and concisely and then waiting for the next question to be asked.
- Do not smile or joke during your deposition and do not be sarcastic especially if your deposition is videotaped. Smiling, joking and/or being sarcastic during the deposition makes business owners or corporate representatives look arrogant, and this is about the worst type of impression you can make during the deposition. If your deposition is videotaped, then any type of 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 tries to shows it to the jury or judge at trial.
- Do not let anything destabilize you emotionally during the deposition. If the deposing attorney says something ridiculous or falsely accuses you of something, the right answer is very calmly saying "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 at all is the best way you can show your strength and your ability to handle the process to the other side.
- Don't speculate. You don't have to talk about why the plaintiff did or did not do something. You are not a mind reader and you are not expected to be. A speculative statement, such as "Plaintiff performed poorly because he wanted our business to fail" will only make you look bad, unless you have actual proof that the suing employee actually had these types of intentions. In addition, it will lead to an unnecessary line of follow up questions, such as "How do you know? Did he ever tell you? Are there any witnesses who heard this?"
- Do not promise to provide additional documents during the deposition. If you are asked whether you have certain documents that would address a particular issue and you believe that even thought you don't have them, you can get them, don't say "I don't have them but I could get them for you." This type of answer would lead to series of unnecessary questions, such as "Oh, how would you get them? From where? What are the documents? Where are they stored? Why didn't you provide them before" etc." Instead, say "I am not sure" and then during the break tell your attorney that you might be able to get a hold of the documents that you were asked about and ask him whether that's something you should do.
- 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.
- Do not bring up performance is it has never been an issue. If the stated reason for Plaintiff's termination is something other than performance, do not talk about how horrible that employee's performance was, because this will likely undermine your side of the story. If the employee was so bad, why didn't you terminate him for performance (earlier)? I
- 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. This may translate into you providing unfavorable answers to the questions asked. 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 an interrogation. It's just your testimony in a civil dispute.
- Insist that your attorney meets with you in person to prepare you for your deposition by asking you the most difficult questions. 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 surprises 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 for what might be coming at you, the better impression you will make on the opposing attorney, which in turn will result in a more favorable result.
- Know how to handle bad e-mails that you might have 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. In many cases, showing remorse is a very good idea.
- Don't exaggerate. This might be one of the most critical deposition tips which ties into a very common tendency in our culture to exaggerate and sound entitled. Remember, your deposition is your sworn testimony and it will be taken and used literally precisely in the future proceedings.
- Avoid prefacing your answer with "to be honest with you," and "basically..." Your 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.