Getting ready for a legal deposition? In this episode, attorney Marc Perlman of Mazow McCullough talks with John Maher about what depositions are, what to expect, and how to prepare. From understanding who will be present to learning how to stay calm and avoid saying too much, Marc shares practical advice that can make a big difference in the outcome of your case. He also walks through common mistakes people make—and how to avoid them—so you can enter your deposition with confidence and clarity.
John Maher: Hi, I am John Maher and I’m here today with Marc Perlman of the Law Office of Mazow McCullough. Today we’re talking about how to prepare for and conduct a deposition. Welcome, Marc.
Marc Perlman: Welcome. Thank you.
What is a Deposition?
Maher: So, Marc, what is a deposition and what is its purpose?
Perlman: So, a deposition is the act of giving sworn testimony under oath, and it’s a discovery tool that’s used by the attorneys in litigation to gather all the facts involved in a case. So, typically one party’s attorney will depose the other party, any witnesses, and ask them questions in order to help strengthen their case and kind of figure out where the strengths and witnesses might be.
Maher: So, is it generally like the opposing attorneys that are interviewing your witnesses or the other way around? What are the parties that are involved?
Perlman: So, when it comes to witnesses, both parties’ attorneys can depose the witnesses and they’ll each have an opportunity to ask questions. When it comes to your own party, typically it is obviously the other attorney who’s deposing your client, but you can also ask them some questions as well if you feel like you want them to flesh out some more information that wasn’t provided.
Will my Attorney be there for a Deposition?
Maher: So, you are present during that deposition. It’s not like you’re just throwing them to the wolves, if you will, and they’re on their own with the opposing attorney or something like that. You’re present with them.
Perlman: Exactly. You’re sitting there, you’re asking questions if needed. You’re objecting if there’s any objectionable questions that are asked. And yeah, and it kind of helps you get a better sense of the case too, by hearing your client present their testimony and see how they come off.
What Other Parties are Involved?
Maher: Is there another party involved, like a judge or something like that, who’s listening to your objections?
Perlman: So, nobody’s there hearing or ruling on the objections. I mean, typically during a deposition when you object, the witness still has to answer the question. You’re just objecting to kind of have that on the record and preserving it for later on if that testimony was attempted to be used at trial. But the only other party that’s there is the court reporter who’s picking up, there’s the photographers, who’s making a record of the deposition.
Maher: Okay. Just basically typing up exactly what’s being said so that it’s on the record.
Perlman: Exactly.
How to Prepare for a Deposition
Maher: Right. Okay. How do you prepare clients for depositions and why is preparation necessary?
Perlman: So, preparation is definitely key. I try to meet with clients usually a week or so before the deposition, and I always tell them four tips to get them ready. Stay calm, that’s really important because opposing counsel is going to really try and get under their skin and ask things that make them get uncomfortable. So, I just remind them to always just stay calm.
Tell the truth, depositions are really meant to be a conversation. I mean, it might be a formal uptake conversation, but a conversation nonetheless. And it’s just meant to allow them to talk about what they have personal knowledge of. So, you just tell what you know and if you don’t know something, it’s fine to say, I don’t know, or I don’t recall.
The other thing is to be consistent with your testimony. Usually before a deposition you’ll have answered some discovery, so it’s good to review your responses to make sure that what you’re saying during the deposition is consistent with what you’ve said previously.
What if You Make a Mistake During a Deposition?
Maher: What if while you’re answering these questions, and like you said, you’ve reviewed what you said previously during discovery and you look over what you’ve written or what you said during the discovery and you’re like, you know what? I think I was wrong there.
That’s maybe not exactly what happened, or you actually feel like what you’re going to say and what you believe to be the truth maybe doesn’t fit with something that you said before. Is there an opportunity there to sort of change your mind or explain something a little bit more or differently?
Perlman: Yeah, certainly. I mean, obviously you want to limit doing that, but typically the deposition takes place sometimes years after an accident or something took place. So, I think it’s reasonable for people to just remember things and really sort of remember things later on.
So, I think just to be truthful and clarify and say, yeah, that’s what I thought, but after thinking about it more, I realized X, Y, and Z. So, there is an opportunity to clear things up and explain why what you would said previously might’ve been a little different.
Maher: Why there might be some discrepancy.
Perlman: Yeah, yeah.
Maher: Yeah. Are there any sort of mistakes, some common mistakes that people make during a deposition and how do you try to avoid those?
Perlman: Okay. Yeah, so the biggest mistake that I often see is people, they sort of willingly offer too much information. During a deposition, I like to tell clients to really just listen carefully to the question that’s being asked and just answer the question. It gets very tempting to want to keep talking and offer more and more and more information.
Maher: Let me tell you the whole story about what happened.
Perlman: Yeah. It’s like the person might’ve just asked a very simple question and you’re giving this super long answer. Simple questions should get simple answers. So, a lot of times if they’re just asking what date or what time did something take place, you can just say that date or time. You don’t have to give a full explanation of everything you did that day and everything like that.
So, that’s a common mistake. I often see it because when you keep offering more and more information, you’re just giving fuel to the opposing attorney to ask more and more questions based on what you’re saying. So, it’s really good to just be succinct and just answer the questions being asked.
Maher: Right. They say, “Oh, what time did that happen?” And they’re expecting you to say 11 o’clock, and then you go through, “Oh, well I did this and this and this and these 20 things,” and they’re like, “How did you do 20 things before 11 o’clock in the morning? That doesn’t make any sense.” And now all of a sudden everything that you’re saying is coming into question and it opens up a whole can of worms.
Perlman: Yeah, exactly.
What Other Deposition Mistakes Are There and How to Avoid Them?
Maher: Right, right. Any other sort of mistakes like that that you see, is that’s sort of the main one?
Perlman: I’d say one is just people letting the opposing attorney get under their skin.
Maher: How do you avoid that?
Perlman: Well, usually when I’m preparing them about a week before the deposition, I like to do a sort of a mock questioning, pretend I’m the opposing attorney and give them very, very tough pinning questions and make them uncomfortable to get them used to being in that sort of environment. And that usually does help people.
Maher: So, they go into it kind of expecting that that’s going to happen and so they know it.
Perlman: Usually, the preparation I’ll do is far worse than what they would actually experience during the deposition so that they’re very well-prepared.
Maher: Right.
Perlman: Yeah.
How to Protect Your Interests in a Deposition?
Maher: How do you balance truthfulness along with sort of protecting your interests in a deposition? Obviously you need to and want to be truthful, but at the same time, like you said, you don’t want to share too much.
Perlman: Right. Well, like I said, I always tell my clients you have to tell the truth. You’re under oath and just listen to the questions being asked and you answer it truthfully and whatever you say, we can talk about it later on and how we’ll deal with it if you did state the truth and it’s something that might not be great for your case, we can talk about that later on in terms of trial strategy, how we’re going to deal with certain facts.
But it’s always important to just tell the truth and just answer the question that’s being asked and try not to speculate or guess as to things. If you really don’t know something, just say I don’t know. Because the deposition is really just meant for you to relay exactly what you have personal knowledge of, what you know for certain, so.
Avoid Going Into Details
Maher: Obviously without going into any details about a particular case. But can you give an example of a successful deposition preparation that you’ve done with a client where you feel like the preparation really made a difference in the outcome?
Perlman: Yeah, I mean, just one client comes to mind where she was a very kind of emotional person and she was very nervous to go through her deposition because she knew that the defense attorney was going to bring up some things from her past. And when she thinks about that kind of thing, it really affects her.
So, I met with her for a long period of time, we did a mock questioning for a couple hours and I was asking her a lot of questions about her past things that she was expecting to be brought up. And I think by going through that and having her be able to talk about it really helped her at the deposition. She was able to stay completely calm with the deposition. Then those questions were asked, she was ready for it and she handled it really well.
Maher: All right, well, that’s really great information, Marc. Thanks again for speaking with me today.
Perlman: My pleasure. Thanks.
Maher: And for more information, you can visit the website of Mazow McCullough at helpinginjured.com or call (978) 744-8000.
