It's the type of phone call no fleet manager wants to get. One of your drivers has been involved in an accident that involves someone else. Even if no one is seriously injured, that may not be the end of the bad news. In such cases, a lawsuit often can follow, and you may be called to give a deposition and possibly testify in court.
The deposition is usually the first step in what can be a nerve-wracking journey though the legal system. When deposed, you are brought into a room with attorneys from both sides, and sworn in. A court reporter records every word you say as you are grilled by lawyers. You will be asked to recall minute details regarding an incident that may have happened months ago.
For many fleet managers, this is a new and often unwelcome experience. But with the right preparation, you can sail through the process and help encourage a positive outcome for your company.
If you should ever be deposed, the following are 10 tips to remember.
Tip 1: Become Familiar with the Process
If your experience with the legal system consists of watching reruns of "Law & Order," this is a good time to become familiar with how the process actually works. It's important to understand exactly what a deposition is and the role it plays in lawsuits. A deposition is part of the "discovery process," in which two parties involved in litigation gather information to prepare for a trial.
Typically, a deposition is taken in a conference room, not a courtroom. You take an oath about the accuracy of your testimony. All the proceedings are transcribed by a court stenographer and, if requested by one of the parties, recorded on video.
Your company's attorneys can help educate you about depositions, providing information and guidelines on what to expect throughout the process.
Tip 2: Do Your Homework
Before giving a deposition, you are entitled to review all the pleadings in the case, including the complaint (the document that initiates a civil lawsuit) and the answer (your company’s first response to the lawsuit), to learn the basis of the litigation. You are also entitled to know what other witnesses and experts have said. This information can provide a more complete picture of the lawsuit and also help you understand the attorneys’ strategies and motives behind certain questions.
While you should prepare, don’t over-rehearse. Canned answers often sound unconvincing. And if you memorize responses ahead of time, you may get rattled when an attorney from the other side asks an unexpected question.
Tip 3: Think Before You Speak
Don't interrupt the attorney. Let him or her finish completely before answering and listen carefully to make sure you fully understand the question. If you don't, say so. You may want to consider having the question repeated. In short, give yourself time to think before answering.
While many people tend to babble when nervous, don't worry about what may seem like uncomfortable pauses. Be sure to give a verbal answer to each question; nods and head shakes can't be recorded, and you will be asked to answer the question aloud.
Pausing before answering questions also allows the attorney for your side to object. Once a lawyer has objected, stop talking immediately until you receive instructions on how to proceed.
Tip 4: If You Don't Know or Don't Remember, Admit It
Of course, you want to come across in your deposition as the knowledgeable professional you are, with a strong grasp of all the details of your operations. However, there is nothing wrong with admitting you don't remember or don't know the answer to a question. Remember, you are under oath, and the rules for perjury apply to depositions. It is better to be honest and admit ignorance than misspeak.
Tip 5: Answer the Question that Is Asked
You may think you know where an attorney is headed with a line of questioning, but resist the urge to jump ahead and answer a question that hasn't been asked. Don't overanalyze the question, or you can tie yourself up in knots trying to stay one step ahead.
Tip 6: Keep it Simple
The best answers to any questions are usually yes or no. While you may not get many yes-or-no questions, try to keep your answers as short as possible. Don't over-elaborate or attempt to add detail that isn't completely relevant to the question posed. At the same time, you have the right to answer questions fully and completely. Don't allow yourself to be too intimidated to interrupt an attorney who hasn't allowed you to speak your piece.
Tip 7: Maintain a Calm, Professional Demeanor
The opposing side’s attorney may try to rattle you. Try to avoid becoming unnerved. Don’t be cute or flippant, and most importantly, don’t get angry. Always keep in mind that, no matter the type or tone of the question, this is business — it’s not personal.
Maintain a calm, professional, and dignified attitude. By doing so, you only help your employer’s case by showing the caliber of workers it hires.
Tip 8: Don't Argue with the Attorneys
You may have been on the debate team in high school, and you may be able to convince your employees and supervisors why your position in a disagreement is correct. But, that doesn't begin to prepare you to take on an attorney in a war of words. Lawyers have spent years in school and on the job learning how to argue. Debating with an attorney generally only makes you look incorrect or silly, which just may be what the attorney is trying to achieve.
Tip 9: Take a Break
While similar in some ways to trial testimony, a deposition differs in several important ways. One of those ways is the ability to take a break when you get tired or overwhelmed. As long as there are no outstanding questions you haven't answered, it's appropriate to ask for a few minutes of downtime.
A short break allows you to stretch your legs, clear your head, and collect your thoughts. The time can also be used to consult with your attorney about the deposition's progress and make adjustments in your tone or approach to questions.
You Can Rephrase Some Answers Later
In a deposition, you are allowed some "take-backs." If you realize you have made a mistake or answered a question in a way that could leave your response open to misinterpretation, it can be amended before the deposition becomes final. If possible, this should be done before the deposition ends.
Generally, you can review the transcript within several weeks of the deposition. Be sure to read it and sign it before it is entered into discovery. While most court stenographers are extremely accurate, this review also allows you to proof the document for typographical errors.
Discovery has several purposes. It is designed to level the playing field and allow each side to get a preview of available evidence before a trial starts. Giving a deposition also allows you an opportunity to refresh your memory. Court cases can take years, and depositions can be useful reminders if you ultimately must testify in court.
Depositions can also help both sides gauge the strengths and weaknesses of each other's cases, and many cases settle between deposition and trial. No matter how intimidating or uncomfortable the process may be, if you give forthright answers in a professional manner during your deposition, it may help encourage the other side to settle — sparing you the obligation of testifying in open court.
About the Author
Richard Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He can be reached at (281) 833-2200 or firstname.lastname@example.org.