Tuesday, August 02, 2005

Small and Medium Sized Business Owners' New Job Requirement: Being Deposed (Items You Should Know About Being Deposed)

As a recent Wall Street Journal mentioned, a deposition is becoming a “rite of passage for ambitious managers,” and I would suggest that this applies to successful small to medium sized business owners as well. Small or medium sized business owners often do not have the barrier between them and litigation filed against their business that executives in large companies usually have. Courts just do not seem to understand that a fortune 500 executive’s time is just as scarce as is a small business owner’s time who employs 10 to 20 people. Be it as it may, small to medium sized business owners will often find themselves being deposed in litigation covering a breach of contract claim with a supplier to an employment litigation claim filed by a former employee - and they cannot prevent this from happening, but they can prepare for it. Here is a brief list of what to expect and some items to keep in mind when you are deposed:

1. Keep answers to either a simple “yes” or “no,” if possible. The more you talk, the more questions the opposing attorney is going to through follow-up questions. The more you talk the greater the chance that you will say something the opposing counsel and use against you. The deposition is not your time to tell your side of the story - your attorney will give you your opportunity to do this under better circumstances (such as through motions or through a sworn declaration signed by you).

2. Prepare before the deposition. Review the relevant documents with your attorney. Discuss legal theories with your attorney and get an understanding of the law so that you have an overview of your case.

3. Take breaks often. Even thought it feels like an interrogation, it is not. You are free to take a break at any time during the deposition, no matter what opposing counsel tells you. Note: It hurts your credibility if it looks like you have to discuss your answer with your lawyer before you answer a question - so sometimes your lawyer will tell you not to take a break while a question is pending (see item #7 below.)

4. Remain calm. Opposing counsel will probably use multiple tricks to try to get you to talk. They will try being your friend (see item # 5) and they will try to get you to lose your temper - all in a calculated effort to get you to lower your guard and say something that will hurt your case. Remember, everything opposing counsel does is calculated - therefore every answer and emotion you have should also be under control and calculated.

5. Remember - no matter how nice opposing counsel is to you, he or she is not your friend and only wants your money.

6. You are never truly “off the record” - even when you are in the bathroom. A court reporter will be present during the deposition, and attorneys will resume the deposition by saying “back on the record” and in the same way stop the deposition by saying “off the record.” Even though you are “off the record,” do not talk about the case at all (in fact, do not talk at all - any thing you talk about - your family, what you did over the weekend - may have some relevance to your case and you do not want to provide opposing counsel with this “free” information). Even if you are only talking to your attorney, but others are present, the fact that others can hear your discussion will usually not make those communications confidential or protected by the attorney-client privilege.

7. Always follow your attorney’s advice. You are paying good money to have him or her present, so follow the instructions he or she gives you during a deposition. If you disagree with your attorney, wait until a break and raise the issue with him or her outside of opposing counsel’s present.

8. Be truthful. It is especially hard today to expect to cover up a “bad fact” by lying about it given all of the different ways our actions are recorded throughout the day via emails, voicemails, building security tapes and records, etc…. And when the opposing counsel discovers your lie, it will embolden their efforts and destroy your credibility.

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