Friday, July 08, 2005

More depo tips

Read this as well.

  • You may bring notes, but the opposing attorney will probably ask to see/copy them, and you will have to produce them.

  • If you are a party to the lawsuit, anything you produce when working with your attorney is privileged. If you are an expert, any notes you took or any materials you created or provided are discoverable. This may vary, I don't know.

  • During deposition, you want to limit the opposing attorney's access to information. Anything you say may be used to impeach your testimony at trial. The deposition transcript will be evidence at the trial. Don't expand on answers when a simple yes or no will suffice. If the opposing attorney is smiling, shut up.

  • At trial, the jury is your audience. You should expand on your answers to the degree necessary to educate the jury. Be careful not to contradict what you said during the deposition. You should have reviewed your deposition testimony prior to your trial testimony.

  • Be aware of body language. Angle your body between the opposing attorney and the jury so you can look back and forth comfortably. If the attorney moves to the other side of the courtroom, you may want to shift, but primarily address your comments to the jury.

  • Again, pause between the question and your answer to give your attorney an opportunity to object. Wait for the judges ruling before answering. If you don't understand what the ruling meant, ask the judge if you should answer the question.

  • Don't lie. Tell the truth. You'll be found out and BOOM!

  • Be confident. You are right. Don't be afraid to state your opinion in confident terms and don't be wishy-washy.

  • Especially if you are the defendant in a malpractice suit, ask your attorney if they can arrange for a mock deposition and a mock cross-examination. These can be very helpful if the examiner is realistic. You may learn a great deal about yourself, especially if you get to watch a video of your mock cross-examination.

  • When asked to review a case as an expert, you should contact the attorney and discuss the case before you write anything down. Your report will be discoverable.

  • The opposing attorney will probably ask you if you have discussed the case, or a particular question/issue with your attorney. Hopefully, you have, and answer, "Yes."
    You will probably be asked if your attorney told you what to say. A good answer is, "No. I told her what I had to say and she helped me frame it a way as to make my opinion most clear." This is especially useful if you are an expert and not a party to the lawsuit."

  • Make sure you read any affadavits prepared by your attorney before you sign them. I have seen good testimony rendered unuseable because it contradicted the poorly written affadavit.
If you have your own experiences or suggestions, please add them.


I forgot, never agree that anything is authoritative. It will be used against you later. Also, whenever the opposing attorney says, "Wouldn't you agree..." you should probably say no.