During economic downtimes, businesses often go into hyperdrive trying to collect money owed, sometimes turning to litigation when clients won't pay up. While I hope readers of this column will never have this experience, it is helpful to be prepared if it happens.
The first thing to know if someone wants to take your deposition -- meaning you will be subjected to questioning to be used in a trial -- is that you shouldn't go it alone. You need an attorney, and in most cases one will be provided. Sometimes, you might need to have your own lawyer present if there is any possibility of a conflict of interest if your employer's attorney represents you individually.
Depositions are a means by which attorneys "discover" information from the other side. Under the basic court rules, the purpose of the deposition is to obtain information that would be important evidence in a lawsuit.
When you are called upon to give a deposition, there also will be a request to produce documents in your possession or under your control that relate to the lawsuit. Remember, the deposition process helps to avoid surprises.
How you answer questions is key. The first admonition that all attorneys will give you is to "tell the truth." That means what it implies: Do not lie. Nonetheless, in telling the truth, one is obligated only to answer the question as presented. You should never volunteer further information. One scenario that I use to illustrate this is where a front desk clerk, suspicious of a couple that has arrived late in the evening, asks, "Are you married?" The couple responds, "Yes." He fails to provide the follow up question: "To each other?" If the question requires a yes or no response, your answer should be just one word.
Always stop and think before you respond. Concentrate on the core of what is being asked. Breathe slowly and don't rush. Your attorney might object to certain questions, which is another reason to pause before answering: It gives the attorney the opportunity to raise an objection. At that point she will tell you whether or not she wants you to answer. Follow her instructions.
If you don't remember or don't know the answer, or if you need the attorney to rephrase the question, be sure you state that as well. No one knows every answer or can recall absolutely everything that has transpired in their life. Thus, "yes," "no," "I don't know," "I don't remember" and "I don't understand the question" are all appropriate answers.
In all cases, never guess or say, "I assume so." That's an invitation to disaster.
When you are asked to verify or read from a document, don't assume it is the same document you have seen before. Always take time to review it and make sure it does, indeed, reflect what you recall or know. If it is not the same document that you have seen before, say so.
During the process, there is no such thing as "off the record." On occasion, your lawyer might say, "Let's go off the record," but that just means what transpires next won't appear in the transcript of the deposition. At this point, you as the witness should stay mum. Never say anything in the presence of the other lawyer, or anyone else, that you would not want recorded.
Usually, you will have a chance to review the transcript. Peruse it carefully, and let your attorney know whether your answers are fairly reflected. If not, you can make changes.
Being deposed can be a stressful event. However, with good preparation, you will present yourself well and provide facts that will help resolve the issue at hand.