how to prepare for a deposition with a aggressive attorney

How To Prepare for a deposition.

• 1. To discover what you know about the case. The opposing attorney is searching for evidence.
• 2. To find evidence favorable to the defendant. In doing so, the opposing attorney may attempt to get you to make statements against your interest.
• 3. To commit you to statements under oath. If you testify under oath in your deposition that the motor vehicle collision occurred in a certain way, ...
• 4. To discredit your testimony or the testimony of other witnesses through you.
• 5. To see what you look like, hear you speak and see how you might present to a jury. The deposition is the only opportunity the defendant’s attorney ...

Full Answer

How do lawyers prepare for depositions?

 · Prior to your deposition, you should review perceived weak areas in your case with your attorney so that you will know how to address them if questions arise during your deposition. 6. Don’t get rattled or upset.

How can I be a good witness during a deposition?

 · Here are tips for depositions: Don't answer questions you don't understand. "If you are asked a question that you do not understand, say so," says Eberhart. "If you don't have a memory of an incident, say "I don't recall." Take action if the lawyer is hostile.

How does an attorney waive objections to a deposition?

 · In three minutes, Jeff Feldman, professor of practice and co-director of the Appellate Advocacy Clinic, explains what to expect in the deposition process, who will be present, how to prepare for a deposition and what happens afterward. He also suggests tips for someone being deposed. If playback doesn't begin shortly, try restarting your device.

How do deposition strategies work?

 · Recognize your cognitive advantage and use it. You frame the questions, you know the next questions. You can ask anything you want, in any order, and you can take as long as you want thinking about them before asking them. Think of how answers will unfold on the other side. Prepare a good outline.

How do you handle a difficult deposition?

How to Handle a Deposition: Advice from an OMIC Defense AttorneyTell the truth. ... Think before you speak. ... Answer the question. ... Do not volunteer information. ... Do not answer a question you do not understand. ... Talk in full, complete sentences. ... You only know what you have seen or heard. ... Do not guess.More items...

How do you respond to an aggressive lawyer?

Here are eight approaches to better handle the difficult lawyer.Point out Common Ground. ... Don't be Afraid to Ask Why. ... Separate the Person from the Problem. ... Focus on your Interests. ... Don't Fall for your Assumptions. ... Take a Calculated Approach. ... Control the Conversation by Reframing. ... Pick up the Phone.

How do you answer a leading question in a deposition?

How to Answer Questions in a Deposition: 5 Ways to AnswerAlways Tell the Truth. ... Listen to the Question in Detail. ... Only Answer Questions that You Understand. ... Dissect Any Compound Questions. ... Stand Up for Yourself During Questioning. ... Take Your Time Answering Deposition Questions.More items...•

How do you ace a deposition?

9 Tips for a Successful DepositionPrepare. ... Tell the Truth. ... Be Mindful of the Transcript. ... Answer Only the Question Presented. ... Answer Only as to What You Know. ... Stay Calm. ... Ask to See Exhibits. ... Don't Be Bullied.More items...

Do opposing lawyers talk to each other?

(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.

Why is my attorney not fighting for me?

For example, in a custody, divorce, criminal, or civil case, your lawyer might not be fighting properly. It might be a sign of incompetence or even a conflict of interest in your client attorney relationship. If you believe that my lawyer is not fighting for me, it may be due to the lawyer's style and mannerisms.

What Cannot be asked in a deposition?

You have a right to refuse any questions about a person's health, sexuality, or religious beliefs (including your own). The opposing attorney will have to explain how your answer has a direct bearing on the case in order to compel you to answer.

Are depositions scary?

Although the deposition sounds scary, dangerous, and stressful, it's merely a formal question and answer session.

What are some typical questions asked during a deposition?

Common questions in this vein include:How did you prepare for this deposition?Have you spoken to anyone other than your counsel about this case? ... What, specifically was discussed?What documents pertaining to the case have you reviewed?Did you meet with counsel for the other side prior to this deposition?More items...•

What do you say and not say in a deposition?

Here are a few things to pay attention to while you are giving your deposition.Never Guess to Answer a Question. ... Avoid Any Absolute Statements. ... Do Not Use Profanity. ... Do Not Provide Additional Information. ... Avoid Making Light of the Situation. ... Never Paraphrase a Conversation. ... Do Not Argue or Act Aggressively.More items...•

How do you mentally prepare for a deposition?

Deposition TipsBe prepared. ... Think before answering. ... Never volunteer information. ... Make sure you understand the question. ... You must tell the truth. ... Don't get rattled or upset. ... Don't guess. ... If you do not remember, say so.More items...

How should I dress for a deposition?

In most cases, slacks (black, brown, or khaki) and a long-sleeved dress shirt are the best option for a deposition. Not too casual. Do not wear jeans, shorts, sneakers, sandals, or head wear. Long pants, dress shoes, and a belt or suspenders are top choices.

What to say when being verbally confronted during a deposition?

Don't let tension impact your statements. When being verbally confronted during a deposition, you may be tempted to blurt out a statement you may later regret. "Do not let the opposing attorney get you rattled by intimidation.

How to confront a hostile attorney?

Although you may be tempted to confront a hostile attorney by stating "You seem angry," the smartest response is to remain calm and answer the questions, says Eberhart. "The attorney on the opposing side will attempt to use whatever they can, to get you to answer a question the way they want you to," she says.

Can an opposing attorney refuse a break?

There may be state specific rules, but on a general basis, the opposing attorney can't refuse you a break, says Eberhart. "You can always say 'I need to use the restroom,' or 'I'm tired, I need a break,'" she says.

Can you make a correction on a transcript?

If you say something you regret, such as an outburst made in frustration, you can make a correction on the record, or you can change the transcript at a later date when you review it. "Both of these methods can be commented upon by opposing counsel at time of trial if they so desire. So the best policy is to think out all your answers and not be forced into making corrections," says Lawrence.

Is it better to correct a statement after a deposition?

It is more damaging to the case to correct a statement after the deposition is over, says Eberhart. "If you realize that what you said may have been misconstrued, just tell the attorney you want to clarify a statement you made that may be confusing or not correct. It is better if you do this while you are still in the deposition," she says.

How to conduct a deposition?

Your Conduct At The Depostion.#N#You should make every attempt to conduct yourself in a professional manner at your deposition, both while you are under oath and while you are anywhere where you can be seen or heard by opposing counsel or other parties. Do your best to avoid displays of anger or frustration toward opposing counsel or other parties, and you should not speak to opposing counsel about the case off the record, outside the deposition room, or in any casual manner. It is best to confine yourself to the answers you are required to give while under oath during the deposition.#N#The opposing lawyer will be carefully watching your demeanor during the deposition to assess the affect you will have on the jury. He may attempt to rattle you to see how you react. Regardless of the tactics employed by the opposing lawyer, you should avoid being defensive or combative. If you rise to the bait he will have achieved his goal. Do your best to remain calm and poised, regardless of the nature of the questions asked.

Why do lawyers use deposition transcripts?

Lawyers at trial may also use the deposition transcript to show inconsistencies in a witness's testimony.

Why do lawyers object to questions they believe are improper?

Lawyers must object to questions they believe are improper in order to preserve the objection for a time when a judge can rule on it. Since there is no judge present at the deposition, objections are stated for the record, and the deposition continues.

What happens if an opposing lawyer doesn't ask the right questions?

It is in your best interest if there are gaps in the story, because the opposing lawyer will be hindered in her trial preparation. Limit your answers to the specific question asked.

Why are depositions taken?

Why are they Taken? A deposition is part of the discovery process in a lawsuit. It is the examination of a witness under oath, outside the courtroom, with the witness's testimony being recorded by a certified court reporter. The purpose of the deposition is to allow the lawyers for the parties in a lawsuit an opportunity to learn ...

What happens if you respond too quickly to a question?

If you respond too quickly, your lawyer may have to interrupt you to make an objection on the record. Depending on the nature of your testimony, it is possible that a line of questioning may upset you, or make you angry.

What is the purpose of a deposition?

The purpose of the deposition is to allow the lawyers for the parties in a lawsuit an opportunity to learn what a witness knows about the facts and issues pertinent to the lawsuit. With certain exceptions, lawyers may take the deposition of any person whom they believe has knowledge pertinent to the issues in the lawsuit.

Why do we need depositions?

Each deposition needs: to be useful and effective at trial in cross-examination; to help you prevail over summary judgment on as many of your causes of action as possible; and, to convince the decision-maker on the other side of the risk of taking the case to trial.

How to know when to stop a witness?

If the former, know (and write down) generally what you’re looking for, so you know when to stop. If the latter, have the cross well-scripted, and be able to back up what you’re asserting with a specific reference to a specific part of a document or testimony. In A Few Good Men, what would Tom Cruise have done if Jack Nicholson had answered, “I’m giving you the truth”? Would Cruise have stomped his feet shouting, “nuh uh”?

What are the techniques used in impeachment?

These include, in addition to discovery, (i) setting up impeachment, (ii) pinning down specific testimony necessary for a motion, or to establish the elements of a claim, (iii) boxing witnesses in, or out on specific matters, (iv) preservation of testimony for trial, (v) assessment and settlement, (vi) and many others. It is generally agreed that different techniques (including, for example, the use of leading questions, or carefully structuring an examination to limit the testimony given) may be appropriate, depending on the purpose of the examination.

How to prepare for a deposition?

As you prepare for your deposition, get clear on the one or two messages about the underlying facts you want to convey in your testimony. These messages are often affirmative responses to the major criticisms being leveled against the company. These will be the themes of your case; the bigger picture of what you or your company did, and why. Then come up with a concept for each message—a simple phrase or sentence that will represent a core theme of your testimony. This concept is your “home base.” It will be the idea that you want your audience to hear, remember, and use when evaluating your case. Then, when you feel yourself losing control in the deposition, use your home bases to pivot away from an aggressive questioner and toward the affirmative message you want to send.

How to avoid losing credibility in a deposition?

Understand that you will lose credibility with them if it sounds like you are avoiding the question or being uncooperative. When confronted with a difficult question, don’t stall by trying to hide behind a claim that you “don’t understand” the question when an ordinary listener would. At the same time, resist the urge to concede the attorney’s spin by submissively answering “yes” or “no” to uncomfortable questions.

What is the last phrase in a deposition?

The last phrase is key when your adversary tries to use your deposition against you during trial. By adding “as I previously explained” at the end you are making it clear to your audience that there’s an explanation for your answer, and it’s the questioning attorney who’s trying to avoid a complete and accurate response to his question. Then, when your adversary tries to use the admission against you at trial, your own attorney can invoke the “rule of completeness” and demand that your previous explanation be read to the jury.

What is the fear of a questioning attorney?

When we prepare 30 (b) (6) corporate representatives and executives for their depositions, they are often fearful that the questioning attorney will try to trick them into admitting something that is not entirely accurate. They are also anxious that the attorney will use a few bad facts to distort the underlying message they hope to convey.

How do you respond to a question?

How do you respond? If you try to avoid the question by explaining why you did what you did, a good interrogator will demand that you give a direct answer to the question (“Q: Mr. Smith, will you please answer my question?”). Resist the question again and you risk looking evasive. At this point, you may be tempted to respond, “Yes, but [fill in your explanation here].” By leading with “yes,” however, you run the danger of giving more credence to the question than it deserves. And following with “but” just sounds like you’re making excuses.

How to respond to a multilayered question?

This is a good strategy for responding to a multilayered question, some parts of which make you uncomfortable. The question may be accurate, but simply answering “that’s correct” could leave your audience with an inaccurate understanding of what really happened. Instead, sort through the parts of the question, like you would with junk mail, and keep only those you want to respond to, hopefully by weaving in one of your home bases. These answers often start with a phrase like, “If you’re asking me . . . .”

How to prepare for a deposition?

Tips to Prepare for a Deposition. Research the law and keep the theory of the case in mind. In order to take effective depositions, attorneys need to know what questions to ask, and to do that, they need to know the law . Although it seems obvious, many attorneys do not research the law before starting discovery.

What happens if you don't know what you are doing in a discovery deposition?

In the discovery deposition, what you don’t know can later hurt you. To avoid being hit at trial with something you neglected to cover at a deposition, you have to be ready to adapt. By the same token, failing to follow-up may result in missing vital testimony that could significantly help your case.

Can attorneys improve their deposition skills?

Every attorney has a deposition style all their own. However, even the best deposition takers can improve. This article sets forth tips and strategies for improving deposition preparation and deposition taking skills.

Do not agree blindly in a deposition?

Regardless of whether the deposition takes place in an area of the country where parties customarily enter into the “usual stipulations” or that is just a meaningless phrase in the jurisdiction at issue, do not agree blindly. Consider whether each deposition is one where detailed objections might be needed.

Can an attorney waive objections to a deposition?

Accordingly, an attorney would waive objections based on the officer's qualifications, another attorney's behavior at the deposition, and to the form of the question if not made during the deposition. All other objections are preserved.

Do you have to be afraid to end a deposition?

Given how few cases go to trial, this may also be true in some depositions. If you like the record you have created and you have met your goals, do not be afraid to end the deposition rather than continuing at the risk of giving the witness a chance to undo the things you achieved up to that point.

Do not blindly agree to the usual stipulations?

Do not blindly agree to the “usual stipulations.” You do know what the usual stipulations are, don’t you? That is okay. No one else does either.#N#In many areas of the country, there are no usual stipulations. In other areas, it may be customary to enter into the “usual stipulations,” but “ [t]here is no judicial definition defining what this phrase means and very few decisions explaining” the meaning. Kathy Behler, Best Advocacy Fix: Depositions and Stipulations, The Legal Advocate, (Nov. 4, 2013). Further, there is not always a consensus among practitioners. See Molfese v. Fairfaxx, 2006 WL 908161, No. 3:05-cv-317 (D. Connecticut April 4, 2016) (deciding whether the “usual stipulations” means in part to that the parties waive the right to review and sign the deposition transcript); Marshall v. Planz, 145 F. Supp. 2d 1258 (M.D. Ala. 2001) (holding that, in this case, the “usual stipulations” do not reserve objections regarding privilege, despite arguments to the contrary).#N#Accordingly, an attorney asked to agree to the “usual stipulations” should either decline to do so, or clarify on the record what is meant by that term. Several recommended responses to “do you just want to agree to the usual stipulations?” are set forth below:#N#“No, I don’t do that.”#N#“That’s fine; we just need to put them on the record.” Then, just start the deposition by stating “we have agreed to the usual stipulations. By that, we mean that all objections are reserved, except those as to form and privilege.”#N#“No, let's just do the deposition per the Rules.”

What does it mean when an attorney is arguing in a deposition?

When attorneys argue over points of law or something happening in the deposition, that is between them. Judges are assigned to be avail-able for attorneys to call when they have legal arguments that need to be resolved. They can take a break to do that.

What to do if an attorney expresses dissatisfaction with you as a reporter?

If an attorney expresses dissatisfaction with you as the reporter, advise the attorney that you will check with the office to see if relief is avail-able and how soon it can arrive.

How to deal with difficult attorneys?

When dealing with difficult attorneys on the job, there are three key things to remember: Always remain professional, polite, and courteous, no matter what happens or how everyone else in the room is behaving.

What is the job of an attorney?

An attorney’s job is to represent and/or defend a client to the fullest. Some do it more vociferously than others, both in the courtroom and in depo-sitions. As they see it, the sun rises and sets on whatever is happening in that proceeding, which can ultimately make or break their case.

Who is Joe Grabowski?

Joe Grabowski, RMR, is principal of Gore Brothers, A Veritext Company, serving the Maryland and Washington, D.C., area. Grabowski is a past president of both the Maryland Court Reporters Association and the National Network Reporting Company, chair of the state association’s Education Advisory Committee, a member of the Society for ...

What is the job of guardian of the record?

As the guardian of the record, your job is to protect the record, making an accurate transcript of what is said and what happens in that proceeding. You have a lifeline: your office. When all else fails, call them. When attorneys argue over points of law or something happening in the deposition, that is between them.

What is the purpose of a deposition?

A deposition is meant to get a correct answer from deponents, not to test their memory, so a witness is allowed to review referenced documents before giving an answer. Seeing the document may help to refresh their memory. This also makes it clear that they are not trying to evade the question, but rather trying to ensure that their answer is correct.

What to do when opposing counsel asks questions?

The opposing counsel may ask questions that seem irrelevant or silly, but try not to appear annoyed by the questions or the deposition. Staying calm and giving honest, thoughtful responses to all questions is the best course of action.

What to say when you don't know the answer?

If you do not know the answer, it’s ok to say so. Don’t guess, speculate, play a hunch or try to answer something because you feel like you have to. It’s very likely that, if you mess anything up, it’s going to be trying to answer something you don’t know the answer to. Because a deposition is sworn testimony, say what you know to be true without avoiding giving testimony that you do know. You can also say something like, “I don’t know but my best estimate is x.” This allows you to provide an estimate without being held to anything specific.

What is Talkov Law?

The attorneys at Talkov Law practice real estate law, family law, business law, bankruptcy law, and trust & probate law. Our experienced lawyers specialize in assisting all parties involved in these civil disputes by providing the best legal representation.

What to do if you give an estimate?

If giving an estimate, don’t let the other side force into choosing an answer that you are not sure is correct. In other words, don’t allow the other side to restrict your answer.

Does submission of this form create an attorney client relationship?

Submission of this form does not create an attorney client relationship. Please do not submit confidential information.

Do lawyers ask questions?

Unsurprisingly, lawyers like asking questions that can be answered by a simple “yes” or “ no.” Of course, an answer isn’t always this straightforward. It’s important to explain your answer when required to clarify your yes or no answer

How do opposing lawyers distract their opponents?

One way opposing lawyers distract their opponents by filing incessant motions to frustrate a matter. Some lawyers are easily distracted by allowing every issue raised by an opposing lawyer to become a dispute. While it is essential to react to some motions, learn to ignore harmless ones.

Why are lawyers so aggressive?

The reason many lawyers are uncivil and aggressive comes from the desire to please their clients. There is certainly a popular misconception by the public that lawyers who are difficult and aggressive are the ones who can bring in results.

Why are lawyers so calm?

Calm lawyers are usually the most efficient because they do not allow their emotions to becloud their sense of reasoning. Nothing upsets an opposing counsel more than a calm and collected lawyer.

What is a difficult opposing counsel?

A difficult opposing counsel is every legal practitioner’s nightmare. Even judges dread the thought of presiding over matters involving a difficult lawyer. Their fears are understandable. Difficult lawyers seem to have a penchant for employing unethical tactics to win a case. According to some lawyers, dealing with a difficult opposing counsel is ...

What upsets opposing counsel more than a calm and collected lawyer?

Nothing upsets an opposing counsel more than a calm and collected lawyer. A relaxed lawyer who is not overwhelmed with emotion is less likely to make mistakes in his case.

How to be proactive in a court case?

To be proactive, lawyers must have a plan of action and anticipate the next move of the opposing counsel, just like in a chess game. By preempting the moves of the lawyer on the other side, you will avoid delays caused by your opponent’s delayed actions.

How does being assertive help you?

Some research and studies have shown that being assertive reduces your stress and helps you deal with difficult situations. Assertive lawyers are rarely intimidated and can succinctly make their points without insulting the other side.