How to Survive a Depositionby Charles R. McConnell

In these litigious times it's becoming more and morecommon for businesses and individuals to becomeinvolved in legal actions. In recent years lawsuitsbrought by employees, former employees or would-beemployees alleging discrimination of various kinds havesteadily increased. An expanding body of legislationaffecting employment continues to open channels ofredress for an increasing variety of complaints.Filings continue to mount, with the fastest growth andlargest absolute numbers attributable to complaints ofsexual harassment and age discrimination.

Unless a lawsuit is disposed of early via settlement (ausual occurrence) or outright dismissal (you should beso lucky), you can look forward to a period ofinformation gathering known as discovery. During thediscovery process, information is acquired fromdocuments and from people. Documents are brought underexamination by way of a legal instrument known as anotice to produce. Once one of these notices isreceived, all documents requested must be provided. (Toreceive a notice to produce and suddenly decide to"clean out the files" and just coincidentally get ridof a few questionable documents is a violation offederal law). Information from people is obtained byway of the deposition process.

Depositions are usually taken in attorneys' offices andoccasionally in available conference rooms, but it isimportant to remember that everything said in adeposition carries the full weight of courtroomtestimony. Forget the television-inspired notionsconcerning "surprise witnesses" and criticalout-of-the-blue testimony in the courtroom; allwitnesses are to be known to both sides in advance, andmost if not all courtroom testimony will have beenaired for both sides via depositions.

The minimum contingent for a deposition includes theattorneys representing both sides, a court reporterhaving the power to swear in witnesses and theindividual being deposed. There may also be present arepresentative of the organization, often the

individual coordinating all case activities for theemployer and perhaps the plaintiff(s). Full transcriptsare generated exactly as would be done for courtroomtestimony.

Anyone who is called upon to testify, as well as anyexpert witnesses utilized, will be prepared fordeposition testimony by the company's attorney. One whois being deposed is subject to questioning by theattorney from the other side, so being deposed is not aprocess that most people happily look forward to, andmany are inclined to look for some way to avoidbecoming involved. Once called, however, there islittle a person can do to avoid participating legally,providing deposition testimony is not optional.However, with a modest amount of preparation -- and byremembering a few simple but critically importantguidelines -- anyone can readily weather this sometimesfrightening process.

Should you be called upon to deliver depositiontestimony:

Listen carefully to each question before attempting toprovide an answer. If any question seems ambiguous orotherwise unclear, ask for clarification beforeanswering.

Never volunteer extraneous information, but answer eachquestion exactly as it is asked without embellishmentor expansion.

If what is asked seems to encompass more than a singlequestion, ask to have the questions separated andrestated.

Never guess at answers. Depositions frequently involvequestions concerning what happened months or even yearsearlier, and often the most honest and accurate answeris "I can't recall" or "I don't know."

Never permit yourself to be rushed. Take whatever timeis needed to think about the question and deliver athoughtful response.

Be careful to avoid being trapped into admissions ofwrongdoing in response to "questions" that are in factaccusations framed as questions. Your attorney will help

guard against this.

Don't be flippant or sarcastic, and never try to befunny. The deposition process has no patience withdeliberately attempted humor, and trying to be funnywill only hurt your position.

Deposition can require a person to be away from the jobanywhere from a few hours to several days, with anequal or even greater amount of time having to bedevoted to preparing to be deposed. If you're calledfor a deposition, your participation is mandatory, sorely on the foregoing guidelines and make the best ofthe situation.