Pause Before Answering is One Rule Experts Say Should Apply in Deposition Prep
“Pause before answering” is the first of three golden rules of deposition preparation shared in the new Section of Litigation-Center for Professional Responsibility CLE, “The Best Defense Is a Good Offense: How to Proactively Prepare Your Witness for a Successful Deposition.” According to experts, the pause serves two purposes — it allows time for objections and forces the witness to think before he or she leaps.
Experts on the CLE panel outlined the second golden rule: “Only answer the question that is being asked.”
“A deposition is not a normal conversation, and speculation is not the witness’s friend,” said attorney Richard Amador of Sanchez & Amador in Los Angeles. “In normal conversation, it is human nature to offer information to carry the story along … The more information you give the other attorney, the longer you’ll be there.”
The panelists said that “tell the truth” is the third golden rule. Impeachment and perjury concerns can enter the case if the truth is not told, according to a chart displayed during the CLE. “Always start and end each discussion about the deposition with this subject. Under stress, some clients get creative with facts. Our memories are horrible, and it is natural to make up things to fill in the gaps,” said attorney Eric Hoffman of Barclays Capital.
“Although most depositions end up in a lawyer’s file and never see the light of day, many others have been responsible for losing cases,” Hoffman added.
Panelists also said privilege should apply in deposition preparation and that clients should be asked in advance about their social media communications, such as Facebook. They added that the two key objectives of deposition preparation should be minimizing inconsistencies and inspiring confidence in the preparer as a lawyer.
And when do you question your own client in a deposition? Only if his or her previous testimony is going to lose the case, according to Hoffman.