9 Tips for Surviving a Deposition

With frustration levels high as buyers and sellers navigate short sales and REOs, the chance of getting snagged in a lawsuit is higher than it otherwise might be. Even if you aren’t personally named in a legal action, you could be subpoenaed to answer attorneys’ questions in a deposition if you had a role in a transaction gone bad. Before you’re deposed, here’s what you need to know.

March 1, 2012

1. Understand that it isn’t a normal conversation. The attorneys might be friendly and make it sound as if they’re asking your opinion on certain matters. But a deposition is an adversarial process, a highly ritualized interrogation, in which the attorneys are trying to get you to say things on the record in a way that helps their client. Under no circumstances should you let your guard down. For you, there’s no upside potential to a deposition; there’s only downside risk.

2. You have a right to an attorney; take advantage of that. Adversarial attorneys will try to get you to answer questions in a certain way. An attorney representing your interests will intervene to make sure the deposition questions stay within appropriate bounds. Your attorney will help you avoid falling into otherwise hidden traps. Be sure to meet with your attorney at least once before the deposition so that you know what to expect and how to prepare.

3. Questions will often be repetitive and appear unnecessary. Still, you must answer them as best you can. The attorneys are trying to come at a key issue from different directions. Since there’s no advantage to you to do anything other than answer the questions, do so with civility and patience.

4. Don’t let attorneys rush you. You have the right to take as much time as you need to answer a question. If you’re asked to read something, take the time you need to read and understand it. If you don’t understand a question, ask the attorneys to repeat it or rephrase it as many times as necessary. When you feel you understand it, answer at a pace at which you feel comfortable.

5. Don’t provide an opinion; just stick to the facts. Unless you’re participating in a case as an expert witness, answer questions only on the basis of fact. If you’re a fact witness, as in most cases you will be, it’s safest not to offer an opinion if an attorney asks you whether a person should have or shouldn’t have done something—unless you have no doubt in your mind what the person should or shouldn’t have done.

6. It’s okay to say you don’t remember. Many legal actions take years to get to the point of a deposition, so you could be asked to recall events that happened a long time ago. If you honestly don’t remember the details of an event, just say you don’t recall. You can’t be penalized for that. Don’t ever guess, speculate, or assume.

7. Ask for restatement of nonsensical questions. Attorneys not familiar with real estate could ask you questions in a way that doesn’t make sense. In these cases, don’t answer the question that you think they’re trying to ask. Instead, ask them to restate it. If after restatement, the question still doesn’t make sense, respond by saying, “I can’t answer that question as you posed it; it does not make any sense.” 

8. Don’t look for emotional clues from attorneys. Don’t assume that the attorneys’ demeanor or tone indicates anything about how well the deposition is going for you. Attorneys acting friendly or showing no emotion are not providing an indication of whether your remarks are helping or hurting their client’s case, so take nothing away from how they’re acting.

9. You have a right to review the transcript. Within a few weeks after the deposition, you’ll receive a verbatim transcript and an errata sheet. Use the errata sheet to note transcription errors and provide your version of corrected testimony. Then sign and date the signature page. You may be required to have your signature notarized.

Jay S. Gregory is a shareholder in the law firm of LeClairRyan in Boston.