Sitting in the “hot seat” for the first time can be a stressful and intimidating experience and especially so if there is significant money on the line. As a seasoned litigator, I have deposed more witnesses than I’d like to admit and have seen many witnesses struggle under the pressure (good for my client, bad for the other side). However, with the right preparation and mindset, you can make the process go more smoothly and avoid making costly mistakes. So, if you are a property manager or community association Board member who is going to be deposed as a witness for your community association’s transition or other pending litigation, check out the below tips on how to be the best witness you can be. And remember…breath.
Prepare for the Deposition
The first and most important step in being a good witness is to prepare for the deposition. You should review with your attorney any relevant documents, emails, or other evidence that you may be asked about, and be familiar with the facts of the case as well as the claims being asserted by your association or against your association. If you are unsure about something, don’t be afraid to ask your attorney for clarification. Ask your attorney about the process, who will be there, and all other logistics as well to make the morning of go as seamless as possible for you.
One of the most important things you can do as a witness is to be honest. After all, you will be under oath and can be subject to penalty. Beyond that, if you are caught lying, it can severely damage your credibility and harm your association’s case. If you don’t know the answer to a question, it’s okay to say “I don’t know,” or “I don’t remember,” depending on whether you once knew the information but cannot recall it, or simply never possessed the requested information in the first place. While it may be tempting, don’t try to guess or make something up just to please the attorneys.
During the deposition, it’s important to listen carefully to the questions being asked and take your time to think about your response. Don’t be afraid to ask the attorney to repeat the question or to clarify what they mean. A good trick is to give a three second count in your head before starting your response. This gives you the opportunity to ensure you understood the question and frame your answer and gives your attorney the opportunity to place a timely objection on the record if necessary. Above all else, never answer a question you don’t fully understand. If you don’t understand the question, tell the deposing attorney, and ask to have the question rephrased.
Keep Your Emotions in Check
Depositions can be emotionally charged, especially if you have a personal connection to the case. However, it’s important to keep your emotions in check and remain calm and professional. Avoid getting defensive or angry, even if the questions are difficult, condescending, or uncomfortable.
Don’t Argue with the Attorneys
Along the same lines, during a deposition it’s not uncommon for the attorneys to ask questions that you don’t agree with, that seem unfair, or are simply meant to trigger you. Don’t take the bait! It’s not your job to argue with the attorneys or to try to prove them wrong. Your job is to answer their questions truthfully and to the best of your ability. You also must keep in mind that many attorneys, like myself, use depositions as a time to test how well or poorly an adverse witness will perform under pressure at trial. Don’t fall into an attorney’s trap of triggering you. Show them that you can and will be cool, calm, and collected under pressure.
As a witness, it’s important to only testify to things that you know to be true. Don’t speculate or make assumptions about things that you don’t have direct knowledge of. Like Dragnet (do people still remember that show?), stick to the facts and don’t try to fill in the gaps with guesses or speculation.
It’s important to be respectful to everyone involved in the deposition, including the attorneys, court reporters, and other witnesses, if any. Even though the deposition may be conducted in a conference room in some office building or virtually, it is still a formal legal proceeding.
While it may seem like a small detail, dressing appropriately can help you feel more confident and professional during the deposition. Dress in business attire that is comfortable and appropriate for the occasion even if the deposition is being held virtually. This may be your only opportunity absent trial to make a positive impression on the other side’s attorney – use it wisely.
Take Breaks if You Need Them
Depositions are more like marathons and can be long and tiring. Don’t be afraid to ask for a break if you need one. Taking a few minutes to rest, stretch, or get some fresh air can help you stay focused and alert during the deposition. But a word of caution—once the deposition starts you can’t talk to your attorney about the deposition including your testimony, what to say, what not to say, etc., even if you are on a break. If you do, the opposing attorney may ask you about what was discussed, and your attorney won’t be able to prevent the disclosure. So, better to err on the side of caution, and make sure that until you are excused by the opposing attorney you refrain from discussing the deposition.
Work with Your Attorney
Finally, it’s important to work closely with your attorney throughout the deposition process. Your attorney can help prepare you for the deposition and provide support and guidance throughout the process.
Being a good witness during a deposition is all about preparation, honesty, and professionalism. By following these tips, you can make the process go more smoothly and avoid making costly mistakes that could harm your association’s case. Remember, your job as a witness is to provide truthful and accurate testimony, so stay focused, listen carefully, and work closely with your attorney to achieve the best possible outcome.