Litigation + Valuation Perspectives

Demystifying Valuation, Economic Damages + Forensic Accounting

Surviving a Deposition: Part I

For some, getting a root canal is a more welcome event than the pain of having to give testimony in court or at a deposition. Because we’ve seen trial drama on television or in the movies, most everyone is familiar with how the testimony process goes in the courtroom. Not everyone is familiar, however, with how deposition testimony works. I will attempt to provide some insight.

What is A Deposition?

A deposition is an attempt by the opposing side to find out (or discover) what you know about the case and what you will say at trial. The opposing counsel will also try to pin down your statements so that they will know, in advance, what those statements will be. They also hope to catch you in a fabrication of the truth in order to show, at trial, that you are not a truthful person and that your testimony should not be believed on any point. The opposing side has the right to take your deposition for these purposes. Correspondingly, your side has the right to take the deposition of the opposing parties.

Got a Deposition Coming Up?

If you have a deposition coming up, and you know what to expect, and can associate a little bit of levity with the process, your deposition might go a lot easier. You might be called upon to testify at a deposition if you are going to testify in court as a witness on behalf of your company, or, possibly because you are involved with a marital dissolution. Or, it could be that you filed suit against a partner or shareholder who is not looking out for your best interests in the running of your company. Or, you might be engaged in litigation because of some wrongful act that caused your business to lose money.

The Deposition Setting

A deposition is less formal than testifying in a courtroom. Your deposition will be taken at one of the attorney’s offices, usually at the end of a conference room table. Generally, you are seated at the end of the longest conference room tables in the opposing attorney’s office. You will sit on one side of the table, with your counsel. Your side is usually the one that looks out the window into the sun. The opposing counsel (could be only one, or two, or more attorneys) will sit directly  across from you, and a court reporter will sit at the very end of the conference table, between you and the questioning attorney. This is so he or she can easily hear what you have to say.

The opposing attorney will bring piles of files and documents into the conference room and place them at your end of the table, right in front of you. He or she will not tell you that they are only going to ask you questions about only a fraction of these records. You may start to notice that the temperature seems unusually warm and wonder why you are wearing your best wool suit as you observe that the opposing attorney is in a short-sleeved cotton shirt.

The opposing attorney will try to give you the idea that he or she is there to make your visit as comfortable as possible. You will see: a pitcher of ice water and matching stained drinking glasses with the firm’s logo etched on them; a pot of coffee provided by Starbuck’s with matching drinking mugs that have the firm’s logo emblazoned on each side; a box of tissues just in case you forgot your own hanky (the tissues should start to give you a clue as to what might be in store for you); and various walled pictures of the benevolent and kindly founders of the firm looking peacefully down on the proceedings at the conference table.

The good news is that there is no judge or jury present. Another good piece of news: The opposing attorney will courteously tell you that you can help yourself to any of the beverages you like; and, with a large smile, add that should you need to go to the restroom, to simply say “I hafta go,” and the deposition will quickly take a short recess while you attend to your needs. Don’t be lulled into thinking that the attorney is going to be just as nice to you when the deposition begins.

The Deposition Process

Just before the opposing attorney starts to question you, you are sworn in, just like in a real courtroom. The court reporter gets to do the honors. It’s always good to make eye contact and hold it while you are doing this. The opposing attorney will watch you carefully while you are swearing to tell the truth. If you can’t look the court reporter directly in the eye, it may be a signal to the opposing attorney that you’ve got something to hide.

The first question the opposing attorney will ask is to state your name for the record. This is a really easy question. The opposing counsel is not trying to trick you. It immediately tells the reader of the deposition that you are the one being disposed. If you have trouble answering this one, simply pick up your briefcase, tell those present “This place stinks big time,” and leave.

Once you get past your name, you’ll be asked to give some background on your employment history (and professional qualifications if you are testifying as an expert).

These types of questions will start to put you at ease. You’ll think “Hey, these questions are a piece of cake. I can handle this.” The opposing counsel will usually be very courteous and cordial to you while asking you these routine questions. They might even smile and joke with you. Again, don’t be lulled into thinking this is the way the rest of the deposition is going to go.

Eventually, you will have to tell all present what you know about the case, including what you have been asked to give opinions on by your (or your client’s counsel) and what your opinions are going to be. If you have been responsible for the preparation of certain schedules, exhibits, or other documents which are being used to help prove your side’s position, you can be certain that the opposing counsel will review these documents with you, one by one; line item by line item. And, by the way, don’t take any papers out of your shirt or coat pockets (like the grocery list you made earlier that morning) to look at during the deposition. The papers, even if they are scribbled notes, are fair game for the opposing counsel to look at, and to use to ask you even more questions.

Don Bays, CPA/ABV, CVA