The Candy Dish

"'Will you walk into my parlor ?" said the spider to the fly; 'Tis the prettiest little parlor that ever you did spy.”

– Mary Howitt

When I walked into my most recent deposition I couldn’t believe what my eyes beheld. There were wood chairs with delicately patterned cushions, soft lighting, personal bottles of Fuji brand water, a tea service and, to top it off, a candy dish. I’m not kidding. There was a candy dish in there.

Mary’s words penned in 1829 still ring true today.

When you walk into the room to give your deposition, one of two things will happen. You will be made comfortable so that it lulls you into making a mistake, or you will be made uncomfortable so that you will get nervous and screw up. Most of the time you will get the water and candy dish.

But don’t be fooled. You are the fly.

Lose Your Stuff

“And even though you're far away from home, you start to get used to it, you start to feel okay, because after all, you do have some of your stuff with you.”

– George Carlin

We have lots of possessions. We take our things with us wherever we go. It gives us comfort and sets us at ease. When we are at work, we have our stuff on our desk. When we travel, we take suitcases of our belongings with us. Women’s purses are getting bigger and bigger each season. Houses are built with larger closets.

Stop and consider this for a moment: what would it feel like to step outside your home with just your wallet with your ID in it? No phone. No credit cards. You just have your ID sitting in your wallet. It is weird… like you are, in a way, naked. But this is exactly how you should arrive at your deposition.

Before arriving to your deposition, give your stuff to someone else. Leave it at home. Don’t be silly and leave it in your car as the opposing counsel will ask you to go down and get it. Calendars, day planners, cell phones and credit cards are all bad things to have with you during a deposition. They are objects that can be noticed, commented on, and then suddenly you will be required to divulge their contents.

Don’t have extra stuff with you when you arrive at your deposition… and by extra I mean anything beyond your identification. Extra stuff on your person is like giving an answer with a long explanation: it's just asking for trouble.

Basics - The Pause

“Sometimes you need to press pause to let everything sink in.”

– Sebastian Vettel, Formula One World Champion 2010–2011

For the basics today I am going to discuss one of the most unnatural things of all that occurs during a good deposition: the pause. I am not referring to a brief pause… I am speaking about a ridiculously long p r e g n a n t pause that lasts from 3 to 5 seconds. Count it out right now: one thousand one, one thousand two, one thousand three, one thousand four, one thousand five. That is a long time. It is a really long time.

Try it out! Ask your friend, spouse or coworker to ask you questions and take that pause before answering the questions. Firstly, you will quickly find that you will have an urge to answer questions faster. Secondly, your questioner will become annoyed and not want to play anymore.

It is so weird, so unnatural, and so annoyingly hard to do. But you must do it. That pause is critical to gathering your thoughts, identifying the question, considering it, and determining the briefest possible truthful answer. Before your deposition, practice this unusual conversation cadence until you are comfortable with it.

Pauses don’t appear in the transcript. Pausing after each question is one of the few things that you can control when you are giving your testimony. It is a crucial step while gathering your thoughts. So use it.

Answer Analysis - Why Did the Chicken Cross the Road?

It's Friday, so it's time for another Answer Analysis. I'm sure that you are wondering, "What sort of insight can be gleaned from the banal 'Chicken Crossed the Road' joke?" I promise there is one, so let's find out!

The key to what you should say lies in what you do next. Jumping in and stating...

• "To get to the other side!"
• "To actualize its potential!"
• "To come, to see, to conquer!"

... is wrong. Wrong! Dead wrong. Why? Because you didn't pause. If you had paused your attorney should have barked out: "Objection, calls for speculation!"

Whenever you hear those magic words, your answer should always be: "I don't know." Period. End of story.

Why would you answer with any other response?!? Your attorney is telling you that you don't know. You are not supposed to speculate during a deposition. So don't. You are not supposed to defend your case during a deposition. So don't. You should only answer when you know the truth. Don't speculate.

Twenty Minute Checkup – A Plan in Two Parts

Your deposition has begun. You are answering questions. How do you know if you are doing a good job or not? You can’t ask your attorney… or can you?

An excellent idea is to implement the Twenty Minute Checkup. For the Part One of the plan, you and your attorney agree to take a break after the first twenty minutes of the deposition have elapsed. You can then retire to a room and talk about what things you are doing well, and what you need to improve on. Are you trying to answer with “Yes” or “No” only? Are you getting too comfortable and chummy with the opposing attorney? Are you explaining your answers? Are you defending yourself? Twenty minutes isn’t that long and you probably won’t get into that much trouble if you have been practicing ahead of time.

On my most recent deposition, my attorney and I had this plan in place. But we took it to the next level. I looked at the clock: twenty minutes had gone by and my attorney had not asked for a break. Then thirty minutes had transpired. Then an hour had gone by! The opposing counsel then asked for a break.

What happened?

We had implemented Part Two of the plan! I was doing so well that my attorney chose to let me keep going. Opposing counsel tapped out first and asked for the break! If you are on a roll and keeping answers narrowly focused, answering questions honestly, pausing before answering, etc. why would you stop? If you go past the twenty minutes, be confident that you are doing a great job and that your attorney is thrilled with your performance.

The Twenty Minute Checkup is a great idea that should help calm your nerves as well as confirm that you and your attorney are on the same page.

Basics - To Tell the Truth

“I have a higher and grander standard of principle than George Washington. He could not lie; I can, but I won't.”
― Mark Twain

The world is filled with liars, cheats and thieves. Unsurprisingly, more than a few find their way into our legal system, using our courts to try to make a buck at some other's expense. For the sake of this post, I am assuming that you are not one of those people. If you are, please unsubscribe to my blog; this information isn't for you. Besides, you couldn't use it as my advice always falls back onto one basic principle: You must tell the truth.

Most of us believe that we don't lie, and in that we lie to ourselves. We all lie every day. Most of the time it isn't with outright deception in mind. Instead, we lie to make others feel good, make us look better than we are, or to make something go smoother for us in a conversation. For instance, upon arriving home after a late work function where you had one beer your spouse asks if you were out drinking. You think to yourself, "One beer would hardly be considered 'out drinking', so I'll say 'No.'" So you do. And you get away with it. So you do it again later, just to make your life go a little easier.

There are good judges and attorneys, bad ones, smart ones, and dumb ones, but two things that they all have in common is that they have dedicated their careers to:

1. Learning the law
2. Figuring out who is lying

Don't tell little white lies. Don't try to simplify a discussion by lying. Don't rationalize a lie by thinking that it is such a little thing that it doesn't really matter. This wrongheaded reasoning will doom your deposition.

How do you avoid these pitfalls? Pause before you answer to see if you are going to tell the whole truth. Analyze every answer in your head before you state it out loud. Take your time. Pausing during a deposition is one of the few things that you have control of (and it won't appear on the transcript) so use it.

Answer Analysis - Where Did You Buy That Shirt?

Here is the setup: You are sitting down at your deposition. You are a little nervous, which is natural. The stenographer is to your left. Your attorney is to your right. Opposing counsel is across from you.

Your attorney has told you to tell the truth, which is excellent advice. After a few preliminary questions, you are asked: “Where did you get your shirt from?” Remembering that you were told to keep it brief, you don’t say: “Oh my gosh, I just snatched it out of my closet and I got it at Target and it was on sale right after Christmas and I only paid $48 for it.”

You respond… “From my closet” or, “From the store.”

Both are good answers. They are truthful and vague, which is ideal. They give the opposing side little new information and don’t reveal anything about you (who doesn’t purchase shirts from a store and put them in their closet?). But one is a much better answer than the other. Which is it?

That’s up to you.

Remember that whatever you say can be followed up on. If you have personal files stored in a file cabinet in your closet, then mentioning your closet might not be the best idea. On the other hand, if you are portraying yourself as someone who is careful with your money, then mentioning the store might force you to later state the name of the trendy La Jolla boutique where you spent $500 on the article of clothing.

Pause before you answer. Think about what you want to talk about with the inevitable follow-up questions. In the above example if you don't have a preference, then the store is a better answer as it does not refer directly to you (many people go to the store, but only a few use your closet).

Why Are We Here?

While I was preparing to give my deposition, I found that there was not a lot of information out there for the person GIVING the deposition. This surprised me. Giving a poor deposition may destroy your whole case before you even get to trial. Giving a solid deposition can win it on the spot.

They say in the NFL that "Defense wins championships." The same is true in depositions. In these posts I hope to shed some light on how to provide a good deposition that will solidify your case.