Tucker H. Byrd
Co-Founder of Byrd Campbell, P.A.
Next to a root canal or colonoscopy, few things in life evoke feelings of dread like giving a deposition. Whether it’s the uncertainty of the experience, or the fear and loathing of being questioned endlessly by an obnoxious lawyer asking what seems like the same question a zillion times, few people say they enjoyed being deposed.
Giving a deposition should be a piece of cake. Think about it; you are usually asked about something on which you should be proficient—the truth about what you said, saw, heard, did, or didn’t do. Yet, depositions remain that “lie awake at three in the morning” experience which cowers even titans of industry. Public speaking invokes panic attacks and night sweats. Public interrogation, under oath, with a videographer and stenographer capturing your every twitch, stutter, and stumble, can take that anxiety to a new level.
Worrying about a deposition, though, doesn’t have to happen, particularly if you remember two simple rules—which we have codified in the Byrd Campbell 10 Commandments For Giving a Deposition (See Below)—to provide you a stress-free approach to preparing for and giving a deposition.
Most deposition preparation falls woefully short. The preparation usually centers on the admonition by a stern-faced counsel who growls, “Restrict your answers to a Yes or No,” which may be fine until the first time you are asked “why,” or “what were you feeling at the moment you fired Mr. Jones?” So when the first question comes requiring you to explain yourself, you are often left more tongue tied than a high-schooler meeting the parents while picking up a prom date. Weighing the fear of facing your own counsel’s sidebar rebuke for having “spilled the beans,” or the public humiliation of bumbling through half-answers while under a withering attack by the opposing counsel, who is armed with a stack of incriminating documents at least as tall as their paralegal, often leaves you to give answers which sound more like apologies than facts, making you so vulnerable that you readily admit to anything you ever did—or even thought about doing—just to get the deposition over.
The key to giving a good deposition comes from realizing what a deposition is not. A deposition is not the time to tell your story, set the record straight, score points, or scrap with opposing counsel. The goal should be to get in and out without hurting yourself, like the “compulsory” part of an Olympic skating program. You should be doing figure-8 loops, not attempting a Double-Salchow (whatever that is). Save the flair and improvisation for the “free skate” program at trial.
You should avoid trying to do too much because only four things can come out of a deposition, and none of them helps. You either: (1) give your adversary valuable information; (2) make damaging admissions which can be later used against you; (3) profess to having no recollection of the events whatsoever, which devalues your testimony, even if later refreshed; or (4) reveal key strategies or arguments. One thing rarely, if ever, happens, that your adversary or his lawyer become so swayed by your testimony they reverse their position in a case.
All of this leads to the two (2) Rules above all else:
RULE NUMBER ONE: You Cannot Win Your Case Giving a Deposition, Only Lose It.
And, if Rule Number One is correct, and only bad things come out of a deposition, then Rule Number Two necessarily follows:
RULE NUMBER TWO: Only bad things happen to you when giving a deposition, so the longer the talk, the greater the chance you’ll hurt your own case; therefore, keep your answers short and simple.
The Rules are simple to state, but exceedingly difficult to implement. To help our clients prepare for and give a deposition, we created the Byrd Campbell 10 Commandments for Giving a Deposition:
I hope these tips help even the most fainthearted deponent. Consider this my offering to the profession after having taken or defended several thousand depositions. The spiritual theming of the list was not chosen by accident. Deponents in the crucible of the deposition often seek divine intervention to free themselves from deposition hell.
These truths of giving a deposition, without embellishment or rhetoric, shall set you free.