How to beat A Deposition
Attorney Steve's Ultimate Deposition Tips
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[Music]
I get a turn Steve Andre and welcome
back to another exciting episode of
litigation whiteboard okay so we are
talking in this video about the
deposition okay this is very important
information this is the essential things
you need to know if you're having your
deposition taken and you need to make
sure that you're dominating and
mastering the deposition so that you
give that good information you become a
strong witness in your case okay
we are licensed practice law in
California and Arizona
we take federal copyright litigation
cases trademark and copyright nationwide
so without further ado let's head to the
attorney Steve litigation white board
all right let's back this up okay we'll
be back all right so what I want to do
first of all is give you some context
some people say well depositions I got a
notice somebody's taking my deposition
what do I do now let's put this in
context for you okay so coming back over
here if you can still see me basically
what happens in the litigation process
is somebody's upset somebody files that
lawsuit that lawsuit may be filed in
state court and may be filed ins in
federal court okay there may be some
other legal proceeding that you're
facing but somebody is subpoenaing you
to come and appear as a witness or
you're the party in the case and you
need to appear as a witness
okay this may also apply if you're
called as witness in a trial you get a
subpoena and you have to show up and
testify to trial so hopefully this is
going to cover some of those basic
things also by the way I think this is
just important conversational two-way
tips that should apply to everybody in
daily life just some basic communication
etiquette to help conversations get
moving but let's go back so we have the
lawsuit file somebody is making certain
allegations you ran the red light
you infringed my copyright you breached
the contract it could be a thousand
different reasons somebody suing each
other so a lawsuit gets filed and
certain allegations are being made so
the job of the attorneys is to come
forward and say well we need to either
prove these facts or if you're the
defendant we need to establish some
defenses so forth and so on okay
so what happens after the lawsuit is
filed typically you have an answer
sometimes there's a motion to dismiss or
demur but let's assume there's an answer
filed and what happens is the parties
end up in what we call the discovery
process discovery process and what that
is really is where the attorneys for
both parties get to do such things such
as send form interrogatories you know
questions we can send questions that the
other party has to answer under oath we
can request documents requests for
production of documents and one of the
other things we can do is set
depositions okay we can send subpoenas
as well that's another part of the
process but we can set depositions the
deposition is really just taking
somebody's interview interviewing them
some would call it interrogation call it
what you will but getting their
testimony under oath in front of a court
reporter so that that information can be
documented and used as evidence in a
court of law
if the case doesn't settle okay now
realize most cases probably do settle
probably ninety ninety-five percent of
the cases do settle so sometimes this is
going to be your only appearance in the
case there may be times when the case
doesn't settle however and you end up in
court in court if you're not giving
honest testimony if your transcripts
aren't reading right and you get up in
court and you testify under oath and
you're giving different answers than you
gave it your deposition then an attorney
might just pull out your deposition and
go hmm isn't it true on this day when I
was you were in my office do you
remember that and you were testifying
that you did not copy this video do you
remember that why are you saying
something differently today is your
testimony change so it can come back and
read a deposition report that's created
can come back to impeach you okay so
it's important to understand how these
things are used so we're in the
discovery process let's check that off
our box here now I'm going to give you
my top ten tips this is my top ten
attorney Steve's ultimate guide pass
this around you may want to share this
on your social networks if you like it
give me some thumbs up on my video
working
are here for you okay goal the goal
always in a deposition is to be calm
relaxed do not get combative do not feel
that you have to spar and fight with the
other attorney you're going to probably
go down the wrong path if you go down
that path instead what you want to do
closely listen to the questions answer
the questions and go through the process
okay we're going to talk about that but
this is our top 10 to help you dominate
the deposition as far as prevailing and
coming out as a a credible witness
that's what you want to be shooting for
coming out as a credible witness that
they go we're not going to shake this
person this person has a solid story
okay number one understand the process
of depositions okay so a lot of people
ask well what happens is am I going to
court you know is the judge going to be
there those kinds of things no this is
done in a private office and usually the
attorney that's setting the depo you're
going to go out to their office you're
going to have a location and a time in
advance you're going to make sure that
you free up your calendar so that you
can go out there and do this deposition
okay so it's in a private office you're
really looking at about like one hour if
there's hardly anything to talk about
if there's a lot of facts in the case or
you're more of a key witness it could go
on depending on your state laws could go
on you know five six seven eight hours
okay um who's going to be there you're
going to have the parties you're going
to have your attorney if you have an
attorney if you're just a party that's
been subpoenaed you do have a right to
get an attorney to represent you and
appear with you but you can have both
parties if it's a video deposition
realize in place in California Arizona
right practice you can set a video
deposition and sometimes those are very
powerful because instead of holding this
up to the jury saying remember when you
said this they can flip over to a video
and say remember when you said this and
you can see the face the facial
expressions so that could be powerful so
you may have a video Aquifer in there as
well court reporter in the court
reporter just so you know that's usually
a certified court
Porter someone whose job is to take down
everything that's being said it all goes
into a transcript the transcript then is
distributed to all the parties and the
the witness will have a chance to change
their testimony in other words if you
botched up or if the court reporter made
a mistake you have a chance after the
deposition to change some of your
answers okay but usually it's best if
you realize you made a mistake on the
record it's usually best to try to
clarify that while you're there having
your deposition taken okay so that's
really something important to think
about okay so you have your Court
Reporters I want to talk about the
process another part of the process is
brakes if you're there all day for a
longer duration of time you may have
lunch lots of times I see they serve
spaghetti which I can't stand this the
spaghetti don't ask me why it's an
expensive spaghetti and salad you may
want to bring your own lunch is what I'm
trying to get to okay but breaks you'll
also have breaks as the person who is
taking the videos you will have a chance
to take breaks okay so stay tuned for
part two of this video we'll be right
back okay back to part two so let's
continue so you're going to have as we
mentioned breaks and the ability to
change the record if need be step number
two tip number two understand the
purpose of a deposition as I was
mentioning it's to get fact-finding it's
for the attorneys to find out what
information you have that may be
relevant to my causes of action in my
allegations so it's always important to
know what the objectives are of the
attorney and also what your objectives
are you may be the plaintiff you made it
be the defendant so you want to know
who's trying to get what you want to
tell your story but you don't want to
tell too much you don't want to be
giving them free stuff so you want to
make sure you sort of understand the
objectives of the party and a lot of
times that's tied in to the allegations
made in the complaint or for the
defendant it's the defensives set forth
in the answer what we call affirmative
defenses okay those need to be proven by
the defendant most
okay so it's fact-finding we're also
trying to gauge the credibility of a
witness are they credible are they liars
or do they like to spar with the
attorney are they angry or they
combative do they have the information
do they not are they guessing and
speculating those kinds of things we're
just trying to weigh who we're dealing
with what kind of witness they would
make if there was a trial okay and again
as I mentioned the trip the transcript
the written transcript that comes out
that is evidence that can be used in a
trial okay and again for impeachment
purposes and also the discovery process
when you take the deposition of 510
witnesses often times you can figure out
as an attorney do I have a great case is
it not quite as good as I thought is it
even better than I thought do things
come out in the deposition that made me
go holy cow I didn't know that I'm going
to add or amend my complaint you know
those kinds of things so that's the
purpose of the depo so step one
understanding the process step two the
purpose of the deposition once you know
these things you feel a little bit
better you feel a little more confident
so you're not so scared of what you're
getting yourself into or what you've
been hauled into step three I'm going to
talk real quick about your dress
appearance medications and the point
that I put there we'll get to that a
second but anyway appearance some people
say well how do I dress can I wear my
Metallica tank top and you know you know
cutoff shorts and whatnot it's probably
best to dress with business attire
general business attire maybe something
you would wear if you were going to
church something that I've got dress
nice especially if you're having a video
deposition taken you want to look nice
you want to sit up straight in your
chair you want to have nice mannerisms
and the other thing that I mentioned is
being rested if you know you're going to
get your deposition taken at nine
o'clock in the morning don't stay out
partying till three or four and come in
you know enough with a fog around you
you know those things aren't going to
they're not going to bear well on you
you're going to have a tough day at the
deposition the attorney is going to be
ready to go and you're just going to
find yourself at a disadvantage and
you're probably not going to enjoy the
process
so anyway be rested medications and
alcohol some people think they have so
much anxiety of taking depositions of
people that just are appear to be like
on drugs and they can't really listen to
the questions they can't respond I mean
just kind of a total train wreck and you
know they just make bad witnesses it's
you know if they can't remember certain
things and so what I suggest is don't
take medications don't take drugs unless
you need them I mean unless a doctor
says you need them but the other
attorney when they start taking the
deposition are probably going to ask you
have you been taking any medications
that would alter your ability to
perceive events and give honest
testimony today if so what are you
taking so you know be prepared that's
probably a question that will come up
sometimes it does sometimes it doesn't
um but that's your dress and appearance
so those are your top three things to be
thinking about sort of background things
this is the context that you're going to
find yourself being deposed in number
four I'm going to talk about this you're
able to prepare in advance with your
attorney okay so this is very important
to understand is that you have the right
and the ability to prepare in advance of
your deposition and most good attorneys
will prepare their clients in advance
you do some role-playing you review some
of the documents that may be pertinent
to your testimony for example when a
deposition notice is sent out it usually
tells you this is the time you need to
appear we're taking your deposition it's
done by video or maybe not
video expect demos are expensive you
know four or five grand or more so they
can be expensive but they're going to
tell you where to appear so forth and so
on so the ability to speak with your
attorney to roleplay to go over
questions and potential answers totally
legal you can do that yes sharing
concerns this is really important when
you if you have some concerns in your
things that you are afraid they're going
to pop out instead of just being
completely worried and don't and don't
say anything
hoping that the other attorney doesn't
address the question may not be your
best bet you may want to discuss with
your attorney I have these concerns that
I want to share you have the
attorney-client privilege as you're
speaking to your attorney so you may
want to share these things which may be
nothing you may be concerned about
noting that something that's not even a
real issue so share those with your
attorney figure out what it is it's
concerning you and address that in
advance review the documents if they're
asking you to bring documents and the
deposition notice you can say to your
attorney we have we need these documents
here's my emails here's my text messages
here's the letters they wanted you know
here's my bank account whatever they're
asking for and you can discuss those
documents with your attorney you can
review those documents and see what kind
of things there are and what kind of
issues are may be so you get a role-play
all of this in advance before you go and
actually do your deposition okay so
these four things should give you some
peace of mind these are my first four
tips is just understanding what's going
on because that understanding
understanding this process the context
in which we're dealing here should bring
you some confidence because you
understand what's going on you're not
you're not ignorant to the whole thing
now let's get down to the nuts and bolts
okay this is actually taking the
deposition which is question answer the
attorney asks a question the deponent
gives an answer ask a question give an
answer ask a question give an answer
that's kind of the flow of it however
that doesn't go that easy sometimes it's
like when you're at a you're at a party
or something you're talking with other
people and you start talking somebody
cut you off and you just go like oh my
god you know and somebody's always
cutting each other off so things can get
crazy and the same thing can happen in a
deposition so we're going to talk about
just a few of these things that may be
helpful here let's go over to my aqua
pen um tip 1 tip 1 here it's actually
number 5 on my top 10 number 5 listen
carefully to the question listen
carefully to the question okay sometimes
just like I said at a party someone will
start talking you go oh I know if
they're going to
saying you want to interrupt and you
want to throw your statement out there
don't do it slow down relax
listen you got two ears in one mouth use
the two ears and listen to the question
what is the attorney asking is he asking
for timings date someone you spoke to
what was sad listen closely to the
question let the attorney finish sit
there relax calmly
mm-hmm-hmm-hmm you can sound impressed
if you want you can do those kinds of
things but let them ask the question
once they're done asking the question
your attorney if you have an attorney
representing you has the right to make a
legal objection now the objections could
take lots of different forms you know
objective objection to the form of the
question it could be objection
irrelevant we know why yes this question
is completely irrelevant objection
argumentative you're just trying to get
this witness aren't you no in a bunch
you're just trying to argue for no
reason you know calls for speculation
calls for a legal conclusion you know
vague and ambiguous compound questions
so there's a lot of different types of
objections you want to always make sure
you're giving your attorney a chance to
raise the objection if not what ends up
happening is everybody starts talking
over each other and then the court
reporters going crazy going on what do I
type down or even what to type down
don't be that witness be the witness
that sits there listens calmly to the
question waits for your attorney to see
if there's any objections think about
the question and digest it and think
about what your answer is going to be so
that is a process of being calm now you
really have to be calm to do that and
the same is true in social settings when
you're trying to talk to people you have
to listen now they may be long-winded
you may be going please get to the point
but give them a chance to get the
question out because if you chop them
off you know trust me you end up going
back the attorney wants to go and make
sure he gets this full questioning you
may have to reread the record from the
court reporter it just turns into a mess
let
attorney finish the questions listen
give your attorney a chance to eject if
they object they will also tell you go
ahead and answer the question in most
cases or they will say I advise you not
to answer the question now usually the
grounds that you're going to find that
on is attorney-client privilege if it's
something like well what did you talk
about with your attorney before you came
here today you say your attorney says
objection that calls for attorney-client
privilege communications I advise you
not to answer the question okay I'm not
going to answer question okay so that's
how the process goes if the attorney
says go ahead and answer then you want
to go ahead and give a nice short answer
that avoids rambling and volunteering
information and talking telling stories
that have no relevance that open up
potential pitfalls okay so listen to the
question listen to your attorney let
them object if they tell you to answer
go ahead and answer with a nice short
direct concise succinctly
okay that's what you're looking to do
all right so listen carefully to the
question tip number five don't talk over
the lawyer don't talk over your own
attorney
okay the court reporter has to be making
this record and you just got to let the
process work itself out it's the best I
can tell you tip number six wait for the
objections as I said right here let the
attorneys fight meaning if the attorneys
want to go back I've got some videos
posted on my website you can go to depo
tips com depo tips com to see some of
these links I posit but you can watch
where attorneys are fighting each other
and the witness should just be sitting
there going hmm
sit there and enjoy watching two
attorneys fight at their job doing what
they do they're trying to protect their
clients that are try to protect their
clients sit there and just enjoy the
process if you have if you had a bag of
popcorn I guess you could eat some
popcorn but just what you gonna let the
attorneys do the fighting okay you don't
have to get involved in that and that's
kind of that okay that's number six on
our list
seven as I mentioned give your best to
full and short answer don't ramble
volunteer information tell stories
I have this down here as part of this
asking for documents if needed now an
attorney may say do you remember you
said on your in your police report for
example that you were driving at 50
miles an hour and you say well I don't
remember do you have a copy of the
police report that I can review so if
you don't know if somebody if the
attorney is referring to documents other
you know written you know
did you write do you remember you put in
the contract you wrote this I don't know
what are you talking about
before you testify you want to make sure
that it's going to be truthful and 100
percent accurate if you have to ask for
a document to refresh your memory then
the attorney on their site should have
that for you if they don't and you say
well I I don't want to say anything
without knowing for sure what I said
don't fall into the traps what we call
taking the bait from the attorney okay
and your attorney if you're represented
should help you protect against that so
asking for docs that's number seven
going up here we got three left if
you've hung out this long you're almost
there you're almost pro at getting ready
for your devil number eight Kate take
breaks as needed take breaks as needed
this is important so if you have to take
a restroom break or you're feeling like
you're getting into an area where you're
a little uncertain okay we're like you
know I'm feeling edgy or something's
just coming over to this guy I just need
a break right now or you find yourself
kind of losing your concentration losing
your focus I just need a break ask for
the break the opposing counsel will give
you the break okay and then if you need
to you can go in the hallway talk to
your attorney say hey this you know I
wanted to wanted to talk to you about
this and he brought up this and should I
be talking about this so it gives you an
opportunity but take these breaks as you
need them okay that's number eight nine
be careful with off-the-record
statements okay so you may be sitting
there and usually when they're taking
depositions you go okay madam court
reporter we're going to go on the record
and so they go okay let me start going
everything's on the record well when
you're done you say let's go off the
record so now you're off the record and
the other attorney you met may be a fun
guy
our galleys I really like this lady
she's so nice I'm just going to talk to
her about my fishing trip you know and
we're just going to talk a little
off-the-record well you may end up
saying something off the record that
when you go back on the record the
attorney may not be so nice after all it
may say okay we're back on the record do
you recall that we were just off the
record and you were saying abcdefg I
wanted to ask you about that or they
just start asking you questions about
that particular subject area and then
you're going like oh geez I trusted the
attorney and I got burned so be careful
of the things you say off the record
okay that's number nine top tip number
10 we're at the bottom is don't offer to
do things after your deposition don't
say something like you know I I have
some documents in my car I can go get
you or you know you know I have these
records over at my office that you know
I'll mail you those or something you'll
see how what I was saying is truthful
you don't need to do any of that stuff
so if your attorney wants you to do that
stuff you can do that but don't offer to
do things okay because then it's on the
record and then the other attorney may
try to use that against you in an
emotion to the court or something don't
do something unless you have to zip it
don't open your big mouth okay so those
are my top ten tips now I'm going to
give you these are bonus tips if you're
still watching I'm going to give you
some added little extra bonuses here
that's my top ten general tips so we're
gonna give you some added bonuses here
um bolli when you're dealing with the
bully attorney and you will get those
the bully blustering blah blah blah blah
blah you know being forceful and mean
and angry your best answer is to stay
home relax
go back picture my formula here
particularly here listen to the question
give time for the objection if answer
give your short concise truthful answer
and just let the process move on like
that sometimes that's as good as you can
do okay let's check that box evasive
will loose persuasive evasive will loose
persuasive say that with me
evasive will lose persuasive so the more
you are trying to avoid answering
questions directly
I don't recall I don't know you know
this and that I have one video on my
depo tips calm where this guy just keeps
saying I don't recall I don't recall
I don't the attorney would barely finish
the question he was going I don't recall
I don't recall that's being evasive you
know there's basic things you're going
to recall so being evasive
we'll lose persuasive you'll be less
persuasive you may make a bad witness
you know that may favor one side or the
other hard to say again the truthful
seek clarifications this is important so
again you want to be truthful you're
under oath okay that means anything you
say is subject to penalty of perjury you
could be held in contempt of court so
forth and so on okay so you want to be
careful you want to be truthful if the
other attorney is asking you a question
you know you know I'm asking you this
this is this is how I I don't understand
what you're saying what what can you
please clarify your question can you
please repeat the question sometimes an
attorney will just be on the cuff
they'll be asking a question and they'll
just start you know rambling about all
the facts that they know and you're just
like what's the question you know so
don't be afraid to ask excuse me what
was the question excuse me can you
rephrase the question can you repeat the
question I don't understand your
question all those are very acceptable
answers you always want to make sure
that the question you're getting is the
question you're answering and that
everybody's on the same page if you're
not sure don't answer ask for that
clarification don't just rush to give an
answer because you want to get out of
there for example you want this to be an
accurate hopefully you don't have to do
many of these in your lifetime but you
just do it the best you can get the best
record down that you can and be done
with it
okay um don't guess and speculate you
know sometimes they'll you'll have a
question and it seems like they're just
wanting you to you know tell me how many
times the the the plane flies over each
day and I I couldn't tell you I don't
know you know you know so they may ask
you to estimate sometimes you
can estimate if you have the ability to
give a fair estimate that may be
something you can do but guessing and
speculating really doesn't do much for
anybody and can damage you and you don't
really even know the answer so why are
you giving the answer if you don't
really even know it okay
again sparring temptation this one comes
up a lot and I don't know well I guess I
probably do know but you take that
position sometimes then the other party
just wants to feel like they're fighting
you or maybe they work for a company and
they're an employee and they come in and
they just want to fight and I just want
to be combative and and that's all fine
you can do that but you know at the end
of the day we're going to ask our
questions we've going to get the answers
your best bet if you want it nice and
clean is just to answer the questions
asked if you're turning makes objections
fine give the answers short and concise
and move the deposition on ok so resist
the temptation to spar with opposing
counsel and they will come up trust me
there'll be a point in most depositions
where you just get tired angry you're
just frustrated you don't want to be
dealing with this or they're making
false statements and you know you're
just going to this attorneys driving me
nuts or trying to mislead me or
manipulate me so that's five so we come
over here what do we have keep the
attorney honest sometimes the attorneys
going to ask you like leading questions
you know when did you stop beating your
wife and you're like what excuse me
that's um you know or what we call false
choice questions you know well you know
which one did you do was it go to the
store did you go to the movies he said
wait a second it was neither one of
those I went to the library so clarify
look out for those false choice
questions clarify those making sure
you're getting honest questions and
honest answers facts assuming facts that
are not there somebody says you know I
want you to assume that the facts are
going to say well you know what happens
when you assume right when you assume
anything you make an ass out of you and
me so we don't want to assume facts we
want to know based on your assumptions
if you're if you're going on your
assumptions then I guess my answer would
be this but I don't want to make those
assumptions because I don't know for
sure okay so what I would rather say is
this this if you have an answer and the
attorney tries
to cut you off and you say well I'm not
done giving my answer may I finish
please you need to stand up for yourself
in that regard so that you make sure
that you're finishing your answers so
they're nice and complete not every
question is is is designed for a easy
yes or no question as most people know
you know so you know why were you in
friend and did you a fringe my clients
copyrights no I I did that's not what I
see let me explain okay so ask for that
time to explain you want to get your
story the essential story on the record
okay um questions like is that is that
all you know about this and I say well
that's all I know
based on your questions nonsensical
hypose sometimes you'll get somebody say
let me ask you a hypothetical you know
if the person was going up the mountain
and he came down and this was falling
down at fifty miles an hour and he did
this and you're just like I don't
understand what you're saying I don't
understand the hypothetical I don't know
how it applies to the situation I'm just
really confused and it's hard for me to
answer the question so something like
that unless it's a very simple
hypothetical be careful hypotheticals
can be tricky okay and false summaries
is my last one in other words you know
to summarize your deposition you said
earlier about two hours ago
bla bla bla bla bla you say be careful
that sometimes that's just a false
summary based on nothing based on what
the attorney was hoping they could sort
of frame this all as you need to be
careful say I don't recall saying that
um you know my testimony is this and so
make sure that your testimony is always
right you cannot be afraid to say take
on the attorney but I'm saying to
clarify and make sure that your points
are being made okay um what do we have
here
usually a question is good for yes or no
again I don't recall to the best of my
recollection these are permissible
answers to give I don't recall I don't
remember do you have a document that can
refresh my memory you know those kinds
of things are sort of the typical
answers that you want to give and then
short explanations if you have a
answer yes that was the case you know
blah blah blah in a short short little
answer to to put that into context fine
those are the kinds of things you look
for um I have here and as I put here let
me finish
there may be times when the lawyers got
what he thinks he needs and he's getting
all excited she's getting excited and
you say yeah please allow me to finish I
mean I need to make sure that I add this
for the record let me finish okay
because remember that attorney come to
three o'clock they're probably getting a
little tired too they're probably
thinking about let's get out of here you
know
so make sure that you're controlling
that piece of it to the extent you can
avoid exaggeration and overstating
things
um one good example that is I never I
never uh you know violate anyone's
publicity rights I never do this or I
always check my documents before I
submit them you know I always you know
it's like really because if you if you
don't always or you don't if it's never
in the movie wrong then somebody comes
in with another witness and they were
but you and you kind of look a little
silly so be careful the words you're
choosing are very important
avoid exaggeration and overstating
things and I already gave you the off
the record caution with that folks you
have survived attorney steve's top ten
ultimate guide deposition tip to help
you dominate your deposition okay hope
that's been helpful if you've enjoyed
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you
