It is often said that a lawyer’s worst enemy is his own client. That is because clients frequently refuse to follow counsel in answering deposition questions, and end up torpedoing their own case.
As noted earlier, the deposition is not an ordinary conversation that you might have with a friend. You are answering questions asked by an opponent who is seeking to take advantage of every word you speak. Two ironclad rules that you must follow in a deposition: (1) you must tell the truth, but (2) you should only answer the question asked. Example: you run into a friend at the supermarket and he asks you,” Hey, didn’t I see you at Circle K yesterday?” In a normal situation, you are likely to say, “Yeah, I stopped to get some cold drinks to take to my son’s baseball game.” But a deposition is not a normal situation, and your answer did not address the actual question asked. Stop for a moment and focus on exactly what your friend asked–he is asking if you know whether or not he saw you at Circle K last night. Unless you saw him yourself, you actually do not know if he saw you. Since you know you were at Circle K last night, you assume from his question that he was there too, and that you just didn’t see him. But you don’t know that. So let’s go back and answer that question the way it should be answered if it was asked in a deposition.
The opposing lawyer sits across the table from you and asks, “Didn’t I see you at Circle K yesterday?” Stop and think about the question. He is asking you to confirm that he saw you at Circle K yesterday. If you were at Circle K yesterday, but did not see him there, you do not know whether he saw you there. So the appropriate answer is: “I don’t know.” Period. No further comment, no explanation. You just give the shortest truthful answer possible because, remember, you are trying to minimize the possibility of saying something that can be misinterpreted and used against you.
But what if you were at Circle K yesterday, and you saw the lawyer there at the same time? What is the shortest truthful answer you can give? It is simply,”Yes.” Again, no further comment and no further explanation.
Now assume that you never went to Circle K yesterday, and the same question is asked. The shortest truthful answer is “No.” Since you were not there, he could not have seen you there. But you do not have to say that because you do not have to explain yourself. Just say, “No.”
If this process sounds awkward and stilted, it is because it is stilted and awkward. It is not a normal conversation. But it is critical that you follow the process of answering only the question asked, and resist the temptation to add explanations or clarifications. Sometimes a client will say, “If I didn’t explain my answer, the opposing lawyer would have been confused.” It’s ok to leave your opponent confused. He has the right to ask any questions needed to clarify your answer if it is confusing. If no further questions are asked, then it is possible that the opponent will be confused, but leaving your opponent confused almost always improves your prospects for a successful outcome because it sends him in unproductive directions. Besides, if the confusion is somehow detrimental to your case, your own lawyer can take measures during the deposition to clear it up. Let him do his job, and you do yours – answer the questions truthfully, but give the shortest answer possible.
As you can see, answering questions in a deposition requires concentration and it helps to do some practice beforehand so you can get comfortable in responding appropriately when you are in the hot seat. In our next installment, we will put in some practice on typical questions that arise in depositions.
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 Answering Deposition Questions, 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.
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