In my first blog on Preparing for Your Deposition #1, I discussed the very basics of the process. In this edition, I will explain more of the nuts and bolts of the process.The best single thing you can do to prepare for a deposition is to know your facts. Sounds easy, doesn’t it? Of course, you know your facts — you know exactly what happened and when. Or do you? Our memories are not always as sharp as we would like to believe. The lawyer you face is likely to dig into every detail of your story. You will be on the spot — can you really remember the date of a meeting, or who was present, or what was said? Most of us cannot, and under the glare of the spotlight, we find ourselves groping for answers and often speculating about facts that may not reflect reality. The problem is that the answers we give in a deposition have consequences, often perilous ones. So what to do?
Write down your story. Be as detailed as you can. Focus on every fact, and try to nail it down in your mind. As you do, you will soon see gaps in your recollection. What did your opponent actually say when you met him on the day in question? What color was the light as you approached the intersection? What documents did you review when you went to close escrow on the land purchase? Do you remember the name of the agent who showed you the property?
Most of the time, there are aspects of our story that we don’t remember clearly. What we do tend to remember clearly is our impression of what occurred overall. To illustrate: you meet with your business partner to discuss his proposal to buy you out of the partnership. Five years later, you don’t remember every word he said, but you know that he offered to pay you $50,000 cash for your interest, and you agreed to accept it. Hold on to that thought and let it guide you through all your answers. For example, if you’re asked about what words your partner used at the meeting and you don’t remember, just tell the truth: you don’t recall his exact words, but he definitely offered to pay you $50,000 for your interest. Sometimes you are asked a question that is totally unexpected. The lawyer shows you a partnership financial statement that shows your interest was worth only $20,000. You don’t recall ever seeing that document, and when the lawyers asks you why your partner would offer you $50,000 when this document shows your interest is worth so much less, you do not have a ready answer. So you tell the truth: you don’t know why that document shows your interest to be worth only $20,000, and you don’t know why your partner made the $50,000 offer, but you know he made it.
This is by far better than trying to speculate about why that financial statement shows something different. Trying to gin up an explanation may well cause you to say things that are not true or that are contrary to other facts in the case. And there may be a perfectly good explanation that you just cannot recall or that you may later discover. For example, you may find out that the financial statement was an early draft, or that it was incomplete. Or you may later remember that your partner wanted to pay you a premium for your interest because of other circumstances that made it particularly valuable to him at the time. Your deposition is not the time to be speculating about why that document suddenly surfaced, or how it affects the lawsuit. You know your partner agreed to pay $50,000, so stay with that fact and admit that you don’t have an answer at the moment for that financial statement. This will keep you out of trouble and give you an opportunity to investigate outside the deposition to find out what really happened with that document.
There are other things you should remember when answering deposition questions. We’ll cover them in the next installment.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Preparing for Your Deposition #2, or any other litigation matter, please feel free to contact us at 480.461.5300, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.