At a deposition, everything you say will be recorded and can be used against you at trial. But lawyers have some tools they use to make the process less cumbersome for themselves and their clients.
Depositions are out-of-court sworn testimony sessions conducted under oath that witnesses give under oath. Witnesses can be persuaded to change their testimony by emotional manipulation strategies used during a deposition session by lawyers representing opposing sides.
Lawyers sometimes pause deliberately to coax witnesses into filling in silences with additional thoughts or chatter even though their prior answer was complete. Witnesses must develop strategies for dealing with this tactic to avoid unwitting admissions that can be used against them at trial.
Navigating a deposition can be one of the most terrifying experiences anyone will face, with pressure mounting to answer every question accurately and to provide accurate responses even for brave individuals.
Following these tips can help protect you from falling prey to deposition lawyers' tricks.
1. Paraphrasing
Paraphrasing, or paraphrase writing, involves restating someone else's ideas in your own words. When done effectively and readably, paraphrasing can make your writing more effective and easier for readers. It is crucial that when paraphrasing you always cite your sources; otherwise, you risk plagiarism charges and fines could ensue. There are various techniques for paraphrasing such as using synonyms, changing parts of speech, or rearranging sentence structure with some sections being added or removed entirely.
Lawyers frequently request witnesses to paraphrase something they have heard or read because they want the witness to recall all relevant details from an event they witnessed, like an auto crash. When doing this, lawyers often hope to gain more information than was originally provided by witnesses themselves - for instance, if an attorney wants a full and accurate answer regarding what the witness observed at the time of impact, for example, they will ask the witness to recount what they remember hearing at that time and paraphrase what the witness saw unfold before asking questions of them about the accident itself.
Paraphrasing conversations during depositions may be useful, but can also be misleading for witnesses who struggle to recall conversations exactly days or even months after they occur. Therefore, it would be prudent not to employ this strategy unless necessary.
Lawyers frequently employ this tactic in depositions to test how witnesses react when presented with seemingly contradictory testimony from witnesses. Any potential contradiction should be raised at the beginning of a deposition so witnesses have an opportunity to provide clarification or more information if necessary.
When answering attorney inquiries regarding how many soldiers died in Iraq, witnesses should clearly state this is only an estimate and not a factual claim. Doing so allows witnesses to give more accurate and helpful answers. It is also crucial that witnesses remain careful when making estimates regarding distance or time - this could result in inaccurate answers leading to further confusion for both attorneys and witnesses alike.
2. Avoiding Objections
Depositions are out-of-court testimony that parties give during litigation. Attorneys use depositions as a tool for gathering witness thoughts and opinions to anticipate what the witness will say at trial, providing essential insight for building defense strategies or mounting strong cases against opposing parties.
To prevent witnesses from providing damaging information during depositions, lawyers use various tricks during depositions - these may include rephrasing questions, referencing items outside the scope of discovery, discussing privileged information outside its discovery parameters, discussing past events that occurred, asking for breaks, refusing questions and pausing before answering further.
Attorneys may attempt to use these tactics during depositions to confuse deponents, leading them to make untruthful admissions by accident. To avoid this scenario, individuals must remain mindful and take their time before answering.
Sometimes an attorney will use coaching objections to extract more information from a witness or assess their credibility. They typically make such suggestions by suggesting they possess contradictory data which will then be watched for reaction from them and opposing counsel.
Objections are an integral component of depositions, yet overuse may waste valuable time and distract witnesses. An experienced attorney knows when and why to raise an objection for legitimate reasons like rephrasing questions or citing legal exceptions; while also being able to recognize when witnesses attempt to prolong proceedings by raising objections that do not stand up in court.
3. Refusing to Answer a Question
Depositions can be highly intrusive and reveal sensitive matters about yourself that you might prefer not to discuss. Questions might pertain to your childhood, education, work experience, relationships, criminal background, and any accidents or claims that have arisen - questions that go well beyond what is at issue in a case and can often be emotionally distressful and hard to manage if intended to embarrass or distress you in any way.
Depositions should only contain facts. Any additional or irrelevant details could be used against you at trial; you should present your story succinctly under oath to avoid doing so.
Many people anticipate depositions with great anticipation as if it's their day in court. It is important to keep in mind, however, that depositions aren't your day in court, and opposing counsel's goal in a deposition is to gather facts or statements they can use at trial to shift the blame off you or defend their client from blame. They will try and pin you down with certain versions of events or catch you in any lie you tell, potentially undermining your credibility at trial.
Your attorney cannot stop any question from being asked that is irrelevant or confidential to your case, even if it seems privileged; but should the opposing lawyer believe your refusal is due to privileged information, they may explain how the question directly pertains to it to compel you to answer.
Your attorney must certify that your objection has been stated sufficiently before entering it into the record; otherwise, you can object again and ask the reporter to verify your grounds for objection.
At depositions, one of the most effective legal strategies lawyers employ is refusing to answer certain questions. But if asked relevant to your case and non-personal, refusing answers should not be seen as necessary; furthermore, if unsure how to answer something properly you can always request clarification from counsel.
Be mindful when taking part in depositions that a court reporter is recording everything you say during them - including nods and shakes, nonverbal movements such as head nodding and shaking, silences, or other non-verbal interactions. Be sure to use your words slowly to avoid misspellings or grammar errors that could compromise the proceedings.
Additionally, it's a good idea to always look your attorney straight in the eye when responding to their question or offering answers; doing so will throw them off guard and reduce their likelihood of trying to trick you with an objection or refusing to answer a query.
4. Taking A Pause
A deposition is the questioning of witnesses under oath as part of litigation. Attorneys use depositions as an invaluable opportunity to learn as much information about a case as they can, which helps them prepare their arguments at trial. But depositions can also be daunting experiences for deponents themselves if opposing attorneys attempt to use tricks during them.
Attorneys may use strategies designed to prolong a deposition, such as asking lengthy and irrelevant questions or diving deep into irrelevant details, to test witnesses' endurance, composure, and consistency over extended periods.
One effective strategy to avoid falling for this trick is taking a brief pause before responding to questions, giving yourself time to reflect before answering, and providing your attorney the chance to raise any objections that might arise.
Additionally, you should refrain from engaging in nonverbal gestures or body movements that might appear nervous. Such gestures could include pointing at something, shaking your head or nodding, quickly blinking, scratching your forehead, or fidgeting in your seat - any such actions can be seen as nervous behavior and could potentially undermine the credibility of your testimony. These types of actions not only distract but may even change it entirely.
If you find yourself uncertain about how to respond, do not hesitate to seek clarification from your lawyer. They can explain what the question means and assist with coming up with appropriate responses. Lastly, speak slowly and clearly; otherwise, the court reporter might have difficulty understanding you if your answers come across too fast or muffled. Therefore, you must practice beforehand by participating in mock depositions with trusted attorneys.
5. Taking a Break
No matter, if your deposition takes place in-person or remotely via video conference, taking breaks between testimonies, is necessary for optimal performance and prevents you from becoming so stressed that it muddies your testimony.
Taking a break will give you and your attorney the chance to discuss your case, prepare for depositions, discuss any personal or legal matters that come up during a deposition, and help decide how best to handle any awkward or difficult moments that arise during it.
Depositions provide attorneys with an ideal way to gather evidence about a case before trial. At such hearings, lawyers often question witnesses on facts and statements which might be used against them in court proceedings.
Depositions typically last several days or weeks. Lawyers use techniques like lengthy questioning, frequent objections, breaks, and sidebar discussions to prolong them for as long as possible; testing witness endurance over such long stretches.
At your deposition, always remain honest and provide only factual information. Do not provide opinions, speculation, or embellishments of answers as doing so may give the opposing attorney ammunition they can use against you in court testimony later.
Furthermore, deposition answers are permanent records and cannot be altered later at trial; thus, it is crucial that you carefully consider how you will answer each question before responding.
While taking your deposition can be a nerve-wracking experience you must prepare properly to succeed with this challenging and stressful event. By understanding the strategies lawyers use when deposing their clients, you will be better equipped for handling this process and succeeding at depositions!
Take a break
Your deposition will feature numerous questions from opposing attorneys. You must take breaks periodically to consider your responses carefully and stay calm and focused, such as taking a brief walk or eating lunch. Furthermore, taking breaks helps avoid overheating or becoming fatigued during this process.
Your attorney is there to discuss any difficulties you're encountering with the questions being posed, allowing them to provide any needed support or provide assistance if required. Before the transcript is completed, it's advisable to raise any issues you have with your attorney during a break - before any questions have been recorded in a transcript - so they can correct it or provide clarity to you.
Furthermore, be mindful of your nonverbal actions during depositions as well. Avoid fidgeting and scratching your head as this behavior could be seen by jurors as signs of nervousness.
Moreover, speaking slowly is key to ensuring no misspeaking occurs and ensuring the jury can hear what you are saying. For more information on preparing for a deposition contact a knowledgeable personal injury lawyer immediately.
6. Avoiding Aggression
Depositions are an integral component of litigation discovery, providing parties the chance to gather evidence and information through out-of-court sworn testimony given by witnesses. But witnesses need to remain mindful of any tactic attorneys use during depositions that could tempt them into saying things they didn't intend to or aren't required by law.
One common trick lawyers use during depositions is to provoke witnesses' fight-or-flight response through power moves, intimidation, hostility, or disrespectful language. An attorney could also stall or ask confusing questions to disconcert witnesses and cause anger, frustration, or annoyance before using accidental admissions from them against them at trial.
Attorneys sometimes utilize another tactic in depositions: pretending they possess contradictory evidence to test witness credibility and encourage more information to be provided by witnesses.
While this approach can help test witnesses’ credibility and encourage more testimony, it also may distract witnesses from providing honest and accurate testimony, leading them to focus more on defending themselves than on providing honest and accurate testimony.
Finally, witnesses must keep in mind that communications with their attorney are confidential, so anything discussed between the two should remain off-limits during depositions. This includes calls, text messages, emails, or any other means of contact between the lawyer and the witness. Therefore, witnesses should avoid volunteering any information during a deposition and permit their attorney to oppose any questions seeking such details.
Preparing to give a deposition can be intimidating, but by understanding some of the most commonly employed deposition tactics by lawyers you can ensure your testimony is honest and truthful.
7. Making References to Items Outside the Purview of Discovery
Depositions are an integral component of personal injury cases and can be extremely nerve-wracking. While depositions provide a chance to explore what happened more fully, remember that you will be under oath and any answers given can be used against you in court by opposing lawyers attempting to get you to give an unfavorable account of what occurred or your injuries to further their case.
Depositions require that you respond without consulting with your attorney while answering questions, yet attorneys often catch you off guard by making statements that could be misconstrued as admissions of guilt.
Depositions can also be used by lawyers as a way of testing witnesses' memories. A question could pertain to something the witness reviewed before being deposed; if they cannot recall anything they may be allowed to refresh their memory and review that document during their deposition before responding.
8. Reading Documents Out of Context
Depositions are out-of-court question-and-answer sessions between lawyers and parties to a case. A deposition is conducted by one side's counsel who interviews witnesses under oath, raising the potential perjury charges should any false statements be made by them under oath.
Depositions also provide an indisputable record that can later be reviewed - witnesses could use testimony given during depositions at trial if their case wins; long and technical depositions can often become contentious with opposing attorneys trying to trap witness testimony out.
One way they do this is by reading documents out of context, for instance selecting key phrases related to their case while disregarding all surrounding text - this may make the phrase appear out-of-place and create new interpretations; so be careful always reading through the entire document before responding to it.
Be wary of questions with circular logic or hypotheticals; these can be especially tricky as they often force you to choose sides or go back and forth on an issue. Be sure to listen closely when answering these queries so you understand exactly what the opposing attorney wants out of you.
Listening attentively during a deposition is also vitally important; this helps the transcriber understand your answers, making it easier for them to reproduce them at trial. Furthermore, do not guess at any questions; doing so could create complications later down the road, particularly if the testimony will be judged by juries.
If uncertain how to answer something specific, wait for your examiner to finish their question before pausing and responding; this gives your retaining attorney time to object or submit objections if needed.
Keep one final thing in mind during a deposition: try not to get upset or angry during it. Loss of composure will diminish credibility and increase the odds that what you say may not be truthful.
9. Refusing to Answer a Question Based on Privileged Information
No one who has been through a deposition can dispute that answering questions during one can be stressful, particularly when attorneys pose difficult or embarrassing ones. But it is important to remember that a deposition is not a trial and you can decline inappropriate questions if necessary.
One of the most frequently employed strategies among attorneys is delaying by refusing to answer a question posed by opposing counsel, which can help buy time and protect privileged information.
If you refuse to answer a question for any privilege-related reason, make sure you inform the court reporter as soon as possible so they may clarify your refusal. In addition, consider asking for a break or additional instruction if you're having difficulty responding; this gives you time, later on, to review and edit as necessary.
Lawyers frequently advise their clients not to answer questions that pertain to information that is considered confidential by making an assertion of privilege against every inquiry, instead invoking privilege on an individual basis and appealing directly to a judge about that specific query if believed by a witness as inappropriate.
Witnesses should pause before responding to questions during depositions to think carefully and consider their answers carefully, without making any misunderstandings or misstatements.
Furthermore, witnesses must remember that any answers given during deposition will be recorded on a transcript and could later be used against them in court proceedings; thus, it would be prudent for them to use only "yes", "no", and "I don't know" responses if possible.
If a question is irrelevant to the case at hand or does not pertain to any relevant topic, it may be beneficial for witnesses not to respond. Although courts may order them to testify - for instance when defendants commit perjury - it is unlikely they would force witnesses against their client to testify.
Privileged information may include confidential conversations between medical providers and their patients, lawyers, and clients, priests and confessionals, or deposition examiners; deposition examiners can only ask relevant deponents questions regarding such confidential material and courts will likely not sanction witnesses who refuse to answer based on it.
One strategy is simply ignoring questions that seem designed to confound or distort testimony, to prevent being misled into answering incorrectly. An attorney with experience should recognize these tricks quickly and anticipate and avoid them in advance. Furthermore, if an examiner harasses or intimidates witnesses unreasonably during depositions they can end the deposition early, file late objections with the judge, or make late objections and request a ruling from him on this issue.
10. Talking About Privileged Information
At depositions, being honest is paramount to ensuring a successful legal outcome. Nothing undermines a case faster than giving false testimony under oath; even seemingly minor details could prove fatal for your case if they cause dissonance within the opposing counsel's team and they use any incongruities as leverage against trustworthiness.
If a question that requires confidential information arises, notify your attorney. They can object and buy time by asserting that this particular data is protected.
At any deposition or trial, it's also essential to remember that communication with your attorney is confidential and not subject to discovery. Your lawyer won't expect you to reveal any privileged information during a deposition; however, during breaks in a deposition session you could be asked if you conferred with them during breaks about deposition testimony; there can be debate regarding this conversation's privilege status; in general, it shouldn't be. Unless the judge declares otherwise, tell the truth!
11. Bringing Up the Past
Rehashing old issues during an argument can evoke strong emotional responses that are counterproductive, which is especially evident during depositions where witnesses must answer precise questions from examiners. Therefore, witnesses must stay focused on present matters so they can resolve disputes effectively.
Witnesses must remember that their statements at depositions will be recorded and used against them later in court; any instances of lying during depositions could result in perjury charges against them.
Attorneys sometimes evoke memories to induce witnesses to divulge privileged information or admit something they're not supposed to, but if you can avoid these common traps your deposition should run smoothly and your testimony transcribed and provided back for review before your trial commences - giving you time to correct any discrepancies if needed so your jury is convinced by it at trial.
12. Discussing A Situation
Witnesses should employ certain strategies during their deposition that will enable them to avoid falling for tricks from opposing counsel and ensure their testimony reaches its intended destination undiluted and undamaged.
Attorneys employ a strategy known as the "disorganized Columbo approach" when questioning witnesses that can pressure them into talking more than necessary; often this discussion proves irrelevant or detrimental to their case.
Attorneys taking depositions hope to gain knowledge that will benefit and detract from their client's case while anticipating any potentially adverse details ahead of trial. A witness's job is to adhere to legal obligations of providing truthful answers while not doing anything which might obstruct their attorney's arguments.
To prevent this, witnesses must refrain from discussing or offering opinions regarding their case during depositions - this is particularly important during breaks when opposing counsel may attempt to distract their testimony through informal chats and off-topic topics.
13. Requesting A Break
Rehabilitating or comforting your client during deposition breaks may be tempting, but off-record conversations could later be used against them at trial to challenge their credibility. Furthermore, discussing questions your client is being asked during breaks may violate attorney-client privilege.
Plaintiff's attorneys often attempt to gain unwitting admissions by inducing confusion hypnosis during depositions. This may involve asking overly complex or lengthy questions or introducing unfamiliar topics - all designed to disorient witnesses so they are unable to provide accurate responses.
Avoid these tricks altogether by forcing opposing counsel to make any objections on the record and only taking breaks when there is a question pending - doing this will also help control the deposition and protect your client's credibility.
14. Requesting Additional Information
Depositions can sometimes reveal sensitive information that was never discussed with your attorney before the deposition, and to preserve attorney-client privilege, you should refrain from disclosing it outside of the deposition itself.
Unfortunately, however, this can be challenging when your discussions with your lawyer are confidential; moreover, questions regarding these discussions could come up during deposition proceedings.
Staying calm through a deposition is your best defense against accidental admissions that could be used against you at trial. Remaining composed will allow you to answer all questions more efficiently.
If you find yourself becoming distressed during a deposition, remember that you have every right to request a break. This can give you time to think over and refine your answers before testifying truthfully. If any further queries arise, feel free to seek legal assistance as needed.
