Litigation Warrior – giving the best deposition possible. Tips from the litigation trenches!
VIDEO: Click on the picture above to hear Attorney Steve explain his top 10 tips for CRUSHING your deposition and being the best witness possible. Make sure to join over 2,500 subscribers who get our free video updates by clicking on the Red “V” for Victory!
In this blog post from Attorney Steve’s Litigation Warrior series we talk about depositions and tips to give the best deposition possible. If you need representation, call us at (877) 276-5084. We help both Plaintiffs and Defendants and parties involved in arbitration and mediation. If you need more help understanding the legal process make sure to watch our “Litigation Whiteboard” series.
Depositions are part of the “Discovery” process
Once a lawsuit is filed, and usually after an answer is filed, the parties to a lawsuit (ex. the Plaintiff and Defendant) are allowed to engage in the “discovery” process. This process is designed to give litigants a chance to get evidence to support their claims and legal theories, or for the Defendant, to seek out possible affirmative defenses to the case. A deposition is therefore one of the discovery tools available to lawyers to help them evaluate witnesses and credibility which may lead to a settlement of the case, or which deposition transcripts may be used at trial.
Here is my Top 10 List to help you achieve Deposition Dominance!
These tips will help you be more confident walking into the deposition room:
- Understanding the deposition process and purpose
- Meeting with your Attorney in advance to discuss the case and review documents (if you have one)
- Bring documents (only if requested) do not offer to “go get” more documents from your car
- Dress, Appearance & Attitude (be rested and ready)
- Keep your guard up and be ready for the common Question Traps (watch video above to learn about these!
- Request breaks as you need them in order to stay sharp (you have a right to request breaks to use bathroom and keep your concentration)
- Be careful when “off the record” (these things may prompt further questions when you go back on the record)
- Do not promise to do anything after the deposition (unless your attorney instructs you to).
- You have the ability to correct errors and mistakes after the deposition (but its best to clarify ON THE RECORD if possible)
- Have fun, relax, and enjoy – YES YOU HEARD THAT RIGHT. You are taking part in the legal process and helping a dispute get resolved.
Watch the video posted above (click on the picture above) to hear these tips in living color!
What happens if you refuse to answer questions at a deposition?
If you refuse to answer questions that are not otherwise privileged (ex. protected by the attorney-client privilege) the other party can file a motion to compel with the Court, and if successful, can seek to have your answer certain questions that you refused to answer at a deposition. One federal court case discussed failure to answer deposition question which was objected to on the grounds of the first amendment:
“Pursuant to Rule 37(a)(3)(B)(i), Federal Rules of Civil Procedure, the court may order a deponent to answer questions that the deponent failed to answer during a deposition. The deponents refused to answer questions based on their First Amendment rights. An individual has First Amendment protection in his religious beliefs, as well as his religious associations.” See Guthrey v. Calif. Dep’t of Corrections and Rehabilitation (E.D. Cal. 2012).A party who objects to a discovery request as an infringement of the party’s First Amendment rights is in essence asserting a First Amendment privilege.” See Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010).In the Ninth Circuit, “a claim of First Amendment privilege is subject to a two-part framework.The party asserting the privilege ‘must demonstrate a prima facie showing of arguable first amendment infringement. This prima facie showing requires a demonstration “that enforcement of the [discovery requests] will result in:(1) harassment, membership withdrawal, or discouragement of new members,or(2) other consequences which objectively suggest an impact on, or “chilling” of, the members’ associational rights.’ (quoting Brock, 860 F.2d at 350). The existence of a prima facie case turns not on the type of information sought, but on whether disclosure of the information will have a deterrent effect on the exercise of protected activities.”
If the party asserting the privilege makes the necessary prima facie showing, the evidentiary burden will then shift to the government to demonstrate that the information sought through the discovery is rationally related to a compelling governmental interest and the least restrictive means’ of obtaining the desired information.The party seeking the discovery must show that the information sought is highly relevant to the claims or defenses in the litigation-a more demanding standard of relevance than that under Federal Rule of Civil Procedure 26(b)(1). The request must also be carefully tailored to avoid unnecessary interference with protected activities, and the information must be otherwise unavailable.
Deponents were instructed or advised to invoke their First Amendment privileges in large part based on defense counsel’s reading of the court’s order on plaintiff’s first motion to compel.
Yet, some of the questions that deponents refused to answer were questions that the court held were not out of bounds. In its order on plaintiff’s first motion to compel, the court stated that information known by a deponent who is or was an employee of a defendant about the organization of the FLDS church and the United Order is not protected. These deponents refused to answer questions about the United Order. They also refused to answer questions about the organization of the FLDS church, which would include questions about church security. To the extent that defense counsel believed otherwise, they have read the court’s previous order too narrowly. Deponents invocation of a First Amendment privilege as to questions about the United Order and the organization of the FLDS church, including church security, was improper.
Deposition Hall of Shame VIDEOS – [Warning – some of these are very funny]!
Here are some videos I had to link to. This should give you a feel for how depositions can play out in real life, and some funny clips. Giving a deposition is not the end of the world, accept it for what it is, enjoy it, and conquer it!
- Best deposition question and answer
- Litigants losing composure
- Old school lawyers almost go to gloves
- How using “I don’t recall” can lose credibility
- Great example of witness waiting for the question while attorneys haggle
Contact a litigation attorney
Call us at (877) 276-5084 to discuss our legal services. We handle cases in the area of software licensing and copyright infringement law (ex. torrent illegal movie download cases), trademark (ex. response to USPTO “office action letters“), trade secret infringement and general business law litigation including eCommerce disputes (ex. online defamation), UDRP domain disputes, DMCA (ex. circumvention of DRM technology), Right of Publicity cases and other general business and real estate matters. We are able to offer low predictable flat rate fees for many non-litigation cases. We have extensive federal court experience and terrific Avvo reviews.
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