Depositions: Testifying Safely

When you give a deposition in a lawsuit, the truth won’t necessarily set you free—or even keep you out of court.

September 1, 2003

As society becomes more litigious, many real estate brokers and salespeople are unwittingly submitting themselves to the perils of what appears to be a harmless deposition, only to learn too late that what they say can trap them in a lawsuit.

Giving testimony at a deposition can be risky because the American legal system is naturally adversarial. Although the attorney who is taking your deposition may like your testimony and keep a promise not to bring you into the lawsuit, the other side may be so angered by your testimony, you’ll be sued.

However, 10 simple guidelines will help you render deposition testimony effectively and safely.

1. Seek advice of counsel before you testify.

There’s an old saying that a person who represents himself has a fool for a client. Whenever you’re subpoenaed to testify in a deposition, speak to an attorney first. Let your attorney review the deposition subpoena and discuss potential liability issues with you.

For example, suppose a buyer is suing a seller because of water damage caused by a leak that the sellers had told you was repaired. You had told the buyers what the sellers told you, and thus far, you’re not named in the suit. However, without the advice of counsel, you might unwittingly say something during your deposition that might lead the buyer’s attorney to believe you were a part of the cover-up.

2. Know why you’re there.

A deposition is often taken to learn your version of the facts—that is, what you’ll testify to at trial if called as a witness. A second reason is to develop impeachment evidence and admissions that could be used against you in a suit.

To get a better understanding of the issues in the lawsuit, call one of the attorneys involved and ask for a copy of the complaint. Then review it with your attorney. You could also speak to the parties involved in the case, if their attorney agrees, to get a better understanding of the arguments they intend to put forward.

3. Know why you’re not there.

A deposition is not your chance to explain your side of the story. You may be eager to tell everyone about the disclosures you made or explain that your advice to a client was sound and there’s really no merit to the case. Stop!

The opposing attorney could introduce your additional testimony to hurt your credibility or damage your client’s case. You’ll have an opportunity to explain your story in court if the case goes to trial.

4. Answer only the questions you’re asked.

For example, if you’re asked whether you completed a form, answer “yes” or “no.” Don’t explain how you use that report or how you file the information. If attorneys want more information, they can ask follow-up questions. It’s also critical not to pass along as personal knowledge or fact any information you heard from others. And remember, the longer you make your answers, the longer the deposition will take.

5. Be prepared.

Very often a deposition will concern a transaction that occurred several years earlier. Review all relevant records beforehand so you’ll have an understanding of the factual background that gave rise to this lawsuit. Don’t bring any notes or other documents to the deposition, however. Also remember not to take notes unless you’re asked to do so by the court. Otherwise, the opposition has a right to review all your jottings.

6. Always tell the truth.

Although telling the truth in a deposition is no guarantee of impunity, lying or playing fast and loose with the facts will undoubtedly increase your potential liability exposure.

7. Don’t be afraid to say “I don’t know.”

You may feel as if you always need a right and ready answer for a client. But a deposition isn’t a test you have to ace. Especially when the events in question occurred a long time ago, “I don’t know” may be a more truthful answer than racking your memory for some half-forgotten fact.

8. Stick to the facts.

We all have a tendency to embellish our statements and describe our states of mind during an incident we’re recounting. In a deposition, such statements can be extremely detrimental. For example, avoid characterizing your testimony with lead-ins such as “in all candor,” “honestly,” or “to tell you the truth.” Such statements open the chance for the opposing attorney to use your statements against you: “Weren’t your other statements honest?”

9. Act professionally.

This common sense is imperative. Wear business attire (a tie for men, a dress with jacket for women). Don’t chew gum or smoke, and refrain from any off-color humor (as tempting as a good attorney joke may be). Behaving professionally will enable you to testify with confidence and increase the credibility of your testimony.

10. Admit you’re not perfect.

If you realize you’ve made a mistake in a deposition, all isn’t lost. Correct yourself immediately if you become aware of your misstatement during the deposition process. If the mistake comes to your attention only afterward, make alterations in the transcript you’ll be sent to sign. Include a note explaining your changes.

A deposition can be an intimidating process and should never be taken lightly. However, with care you can ensure that your depositions prevent lawsuits rather than bring them on

Tyson is a trial attorney in San Diego. He is a principal with Tyson & Mendes, where he specializes in defending real estate and other professionals. You can reach him at 858/488-1601 or rtyson@san.rr.com.

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