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Episode 144 - How to Give a Great Deposition Part 1

Episode 144 - How to Give a Great Deposition Part 1 Image

10/24/2019 11:30 am

One of the more effective tools in the 'Discovery' process is taking someone's Deposition. In this show, Leh and Todd briefly explain what a deposition is. They also discuss what your goal should be and what the goal of the opposing counsel often is. Then they spend the rest of this show and the next examining the most common techniques used by lawyers to achieve their deposition goals and get the most information they can from you.


Leh Meriwether: All right, Todd. I got a question for you. Can you be serious for this show?

Todd Orston: No.

Leh Meriwether: I knew it.

Todd Orston: That was easy. Are we done here?

Leh Meriwether: No. Welcome, everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you are listening to the Meriwether & Tharp Show. Here you will learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and from time to time, even tips on how to take your marriage to the next level. If you want to read more about us, you can always check us out online, All right, Todd.

Todd Orston: Time to get serious.

Leh Meriwether: It's time. We're going to get technical again today.

Todd Orston: All right.

Leh Meriwether: I know that bores you, but-

Todd Orston: No. I've got nothing to do for the next hour or so, so I'm good.

Leh Meriwether: Okay. Good. All right, now, today ... Last week, we talked about the tools of discovery, and one of those tools are depositions. Now, depositions, it's a very powerful tool. It's not a tool that you use that often in a divorce case, partly because there's a limitation on how much resources the parties have to take depositions. I mean, obviously, with higher asset cases, higher income cases, there's a lot more cash flow to afford depositions. But even then-

Todd Orston: Maybe not the necessity.

Leh Meriwether: ... it's not necessary, but there are situations where it's absolutely necessary. And so we want to take time today and potentially next week, just because there's so much information we want to give, talk about if you're the one who's sitting in the chair that's being asked questions under oath and everything you say is being written down, how do you get ready for that? How do you give a deposition and do it properly, tell the truth, but at the same time, don't hurt your case? What's the best way to do that? And that's what we're going to talk about today.

Leh Meriwether: So a lot of people do not prepare for depositions. You'd be surprised how many ... There have been cases where I went in there and asked one question and used the silent technique, and suddenly I got all kinds of great information that I didn't even ask for, but it was still helpful.

Todd Orston: Yeah, I wish you would use the silent technique [inaudible 00:02:20] No. No, but people listening probably don't even know what you mean by that. Silent technique is like you ask a question, they answer. "Have you ever been with somebody other than your spouse?" "No." And you sit there quietly, looking at them as if you know something that maybe they don't know that you know. And next thing you know, "Well, I don't know what you're talking about. I mean, yes, I've ... Yes, I mean, I did go to Tampa that one time and I mean, yes, I have a friend who's in ... " A "friend," quote, unquote, "in Virginia, and it's [crosstalk 00:02:54]

Leh Meriwether: And she met me down there, but we're just business colleagues.

Todd Orston: But we're just friends. Yeah. And next thing you know, they are babbling and giving you information that you didn't even know maybe existed. I've gotten some of those. But that's what you're talking about, the silent treatment or silent technique.

Leh Meriwether: So you just sit there and be quiet, and people don't ... Well, most people don't like silence.

Todd Orston: So let's start with ... and we went over it a little bit last week, but let's explain what a deposition is a little bit more. I mean, like you said, it is the ability to engage in discovery. It's a discovery tool, where you ... It's a controlled environment. If you have an attorney, if the other party has an attorney, then you and your attorney are there. Usually other parties are excluded from the room. You can't just bring your family members and friends to come in. It's not a party. And you are able, in a controlled manner, to ask questions of a party and they are under oath. And it is being taken down, and there's going to be a transcript. And basically, the purpose is to secure evidence for use in that case, to gather information and secure evidence. You could be asked, in a divorce, typical divorce, custodial issues. There could be financial issues. There could be any number of issues that come up. As long as it's related to the divorce, fair game.

Leh Meriwether: Yep. So a deposition is not a trial. This is not-

Todd Orston: That's right.

Leh Meriwether: In fact, most, as I said in the last show, most people won't even hear about that a deposition was taken if, when you get on the stand and your testimony on the stand is the same as in the deposition, your prior deposition won't even come into the court record.

Todd Orston: As a matter of fact, it can't. Basically, the attorney or the other party, can't say, "Well, this person, yes, they said this. Oh, and they also said it in deposition. Oh, so yes, this person's bad, and this isn't the first time that they've talked about it."

Leh Meriwether: Right. And so they're taken under oath, and usually the attorney or the opposing party is asking questions. The court reporter swears you under oath. The other one's taking everything down. Occasionally, there's a videographer there who's videotaping you to catch your mannerisms-

Todd Orston: Not as common unless the behavior of the other party, not just the words and the content of those words, but if the behavior and the mannerisms of the other party is an issue, somebody has an anger management issue, someone has a drug addiction issue, so they might be jittery. They might be acting in a way that shows that they are just not stable. Then a video might be a good idea, but it's not as common.

Leh Meriwether: Yeah. And so they can have a significant impact on your case. They can result in settlements sometimes if something comes out in the deposition, and often, your lawyer won't ask you any questions inside the deposition. It's just the other side asking questions. I know that bothers some people like, "Well, why didn't you ask me about this?" I didn't need to. This is just their deposition.

Todd Orston: And strategically ... I know we're jumping around just a little bit, but strategically, sometimes it's good to ask a question at a deposition because you're securing that information. But strategically, sometimes your attorney may decide not to bring up a specific topic if you already have good evidence about it. Going into that topic at the deposition may actually tip the other side off that that's going to be an issue at trial or in the case, and you may not strategically be ready to let them know that.

Todd Orston: So I know I've had those situations where I've decided and talked ahead of time with my client and said, "You know what? I know this is really important to us. We already have some great evidence. I don't need to confirm these things with the other party right now. Let's leave this alone because I don't want them to answer or deny whatever and then try and do things to hide these, talk to other witnesses-

Leh Meriwether: Oh, yeah.

Todd Orston: ... and do things that could impede our ability to gather more information from other parties."

Leh Meriwether: And it's a strategic decision that can be critical because you only get one deposition. And often, they are time limited as well. So you may want to cut out stuff. If your attorney's taking the deposition, they might want to cut out stuff. So there are no specific rules, per se, for a deposition. If you're the one who's giving the deposition, you're testifying, you're called the deponent. But there are principles that help to deal with most situations.

Leh Meriwether: And I will say that if you're getting ready to be deposed and you are worried about ... there's certain questions you are scared to death to be asked about, write them all down and sit down with your lawyer and ask them, "All right. I'm scared about this. What should I do? How should I answer them?" And I say how because you have to tell the truth, but sometimes ... Well, we're going to get into that. You want to answer just the question, and that's probably one of the biggest principles that you're going to hear ... you're going to hear that in different forms through this whole show.

Todd Orston: Yeah, there's an old adage, "If I ask you what time it is, don't tell me how to build a clock." I'm trying to be funny a little bit, but that saying is very poignant. It's very on-point. If I ask you what time it is ... "Leh, what time is it?" You would say, "It is ... " whatever time it is. If it's 3:00, you would say, "3:00." If you say, "It's 3:00, but I mean, I know when I'm in another state, the time might be different. And my house in Wisconsin, I mean, the sun ... It's funny. The sun hits the back of the house, and it heats things up. And my air conditioning, it starts to overheat." That's not the answer. The answer was, "It's 3:00," and you stop there. You have to put the burden on the person asking the questions to follow up. If they want to know about your house in Wisconsin, let them ask you.

Leh Meriwether: All right. So the deposition's purpose ... I just want to make sure everybody understands this because the key purpose is to get information and lock you into position. Nothing wrong with that. Just go in there understanding that's why they're doing it. Sometimes your testimony may be different at trial. If that is the case, I just want to say this ahead of time so we don't forget it, that can be as a result of new events, so you know more information now you didn't know back then. So you may say, "I didn't ... " so maybe, "Do you have any knowledge about X, Y, and Z?" "No." Well, when you get to trial, you say, "Yes." It's like, "Well, I found out about it after the deposition."

Todd Orston: Yeah, but you can't say that about an affair.

Leh Meriwether: Well, yeah.

Todd Orston: Yeah, I mean, "Did you have an affair?" "You know what? Some new information came to light. I suddenly remembered."

Leh Meriwether: "I have a child with someone else,-

Todd Orston: Right. Exactly.

Leh Meriwether: ... so I must have had an affair." No, yeah. All right. So maybe you discovered additional facts. Maybe you refreshed your recollection, but that's just something to keep in mind and be prepared to explain why if something changes. So the key is the other side's going to want to be conversational with you, to start a conversation, just, "Hey, how's it going, Todd? You doing okay?" And the answer should be, "Yes."

Todd Orston: You're not there to make friends. You're there to comply, answer questions, but to do so in a way that doesn't just hand them the keys to the kingdom.

Leh Meriwether: Exactly. And I wish I had keys to keep going, but I don't. Up next, we're going to get into more ways to give a great deposition. I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB. So you can always check us out there as well.

Todd Orston: Better than counting sheep, I guess. You can turn on the show, and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very softly.

Leh Meriwether: Welcome, everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to the Meriwether & Tharp Show.

Todd Orston: Oh my God. [inaudible 00:11:36] Did you just-

Leh Meriwether: I was trying the silent treatment on you.

Todd Orston: Oh. I was about to call a medic. I have no idea what just happened.

Leh Meriwether: Today, we're talking-

Todd Orston: You literally looked like you froze. I'm like-

Leh Meriwether: I was doing the silent treatment.

Todd Orston: And by the way, I was not going to give you mouth to mouth. Andrew, that was totally ... You're up. Short straw.

Leh Meriwether: Oh. No. So today, we're talking about depositions and how to be ready for a deposition. If that silence that you just heard was really uncomfortable, well, sometimes lawyers will intentionally do that in a deposition to get you to start talking. So that's one of the techniques. We're going to talk about some of the techniques, the things that lawyers do, and they're not ... I mean, it's not necessarily ... Well, I guess you could call it a trick, but people want to fill the silence with sound sometimes, and so that was ... I was trying to give an example.

Todd Orston: Well done.

Leh Meriwether: [crosstalk 00:12:32]

Todd Orston: Maybe a heads up so I don't literally call 911.

Leh Meriwether: All right. So where we left off, we were talking about how we as lawyers, we want to have a conversation with the deponent. The deponent is the one who's giving the deposition. They're the ones being asked the questions. So we like to have a conversation with them to get a lot of information. Again, I'm not trying to trick the person, but I'm trying to get as much information as quickly as possible and as easily as I can. But that's not what you want to do as the deponent. You want to give specific answers, short answers, the shorter the better, often, there's exceptions to that rule, to the questions asked.

Leh Meriwether: So keep in mind, don't make it a deposition. And I want to, before we get into the other specifics as far as what to say, remember to maintain your composure. You don't have to worry about giving answers that persuade them, that educate them. You're not going to win the case, per se, at this deposition with the other side. It's just truthfully answer the question asked and nothing more.

Todd Orston: Well, let me jump in for a second because at the beginning, you said ... and this goes to composure. You said, "It's not a trail," and you're 100% right. You are absolutely on trial a little bit meaning sometimes it's what you say. Sometimes it's how you say it. And I have taken depositions before where I walked away saying to my client, "We will have a field day if we go to court and I get that party on the stand and ask questions. Their anger will show. Their ... " whatever it is. Let's say their-

Leh Meriwether: Okay. You've learned what buttons to push.

Todd Orston: ... that it will be easy to push buttons, and therefore, now, all of a sudden, that has influenced the advice that I'm giving my client in terms of what I think the outcome of a trial might be. So if my client is saying, "My spouse is an angry person," but we do the deposition and they are calm, they are cool as a cucumber, and basically, then I'm going to be looking at my client going, "Listen. I hear you, and I believe you. But just understand they're going to be a good witness," as opposed to, they go in there and they just lose their cool and then all of a sudden I'm looking, going, "Oh, yeah. Yeah. I mean, not only can I now use the deposition, but on top of that, I absolutely believe we will get him or her on the stand and their true colors will come out."

Leh Meriwether: And I'm glad you said that because really the goal of the deponent is to get out of the deposition without hurting the case, and sometimes you can help it by just your composure, like you gave that example. So we're talking about depositions as far as not hurting you for trial but in that situation where the person was calm and cool, you got to tell them, "That's not going to come across in the courtroom, so we need to settle." So a lot of times, you get out of that deposition without hurting your case, you've actually increased the likelihood that you're going to be able to settle your case.

Leh Meriwether: All right, you just need to remember, a deposition is not to win the case. I mean, sometimes your composure can help settle the case. It's not to vent emotion. You're not there to do that. You're not there to convince the other side you're right. You're not there to hide the truth or to reveal the truth. You have to tell the truth but not necessarily reveal the truth, meaning answer the question that's been asked.

Todd Orston: Let me put it a little bit differently, okay, and build on that point. My job, as an attorney, is to get information from the deponent that I feel is going to help my client's case. You are either going to make it challenging for me or easy for me. The more information you just decide to give me, the easier you are making it. If, like I said before, if I ask you what time it is and you want to tell me all about everything ... There are times that I have to shut down the person and say, "Okay. That's not what I asked, and I have to get you back on track." And there are times that I will literally sit back because mentally, it's almost like the scoreboard and it's like, ding, ding, ding, ding. I'm like, "Oh, wow. That's ... Oh, that's going to be great. Oh, gosh. That wasn't-

Leh Meriwether: I wasn't expecting that.

Todd Orston: I had no idea." And I'm just listening, going, "This is gold. This is going to benefit my client." So let the attorney do the heavy lifting. Let them work to get the information from you. Be honest. Be truthful. Answer direct questions and answer fully, but be succinct. Be as succinct in your answers as possible.

Leh Meriwether: We're going to get some specific examples of what we mean by that. And I was laughing a second ago just because I remembered a case where that happened. I asked the question, and then I'm like, "Wow." And then, like you said, the scoreboard, ding, ding, ding, ding, ding, ding, ding, ding, ding, to the point where the deponent, the other party's own lawyer-

Todd Orston: Lawyers.

Leh Meriwether: ... said, "I'm objecting to my client's answer as non-responsive." I'm like, "I didn't think you could do that, but too late, he's already said that.

Todd Orston: Yeah. "Motion to change facts." No, you can't.

Leh Meriwether: Motion to change ...

Todd Orston: "No. You will sit there quietly, and we are going to let your client, yeah, tell me everything."

Leh Meriwether: Yeah, so remember to get out of settlement mode when you're in a deposition, it doesn't mean you be combative. You still answer the questions, but you also want to show ... You don't want to show eagerness of settlement. You just want to answer the questions. Remember to guard your thoughts. Don't think out loud. I've seen people just processing things and they'll start talking out loud. Well, everything you say is being written down, so silence is okay. So just think through it.

Todd Orston: Yeah, here's another thing that ... Don't rush to the answer. One interesting thing, especially if it's not being audio recorded or video recorded, is that when you read a transcript, you can't tell if you took 30 seconds to come up with your answer. So I will always tell clients before they sit for the deposition, "Think about your answer. Don't think that you have to get the answer out there immediately. I don't care if it's 10 seconds, 15 seconds, 20 seconds." Now, of course, you wait too long and it happens too often, opposing counsel might put something on the record. "Look, I keep asking questions and you're waiting 30 seconds to a minute every single time. Can you please speed things up? Can you please be a little more-

Leh Meriwether: "I'd like the record to reflect that Todd Orston just took five minutes to answer that time it is."

Todd Orston: That's right. But if you're reading the transcript, a transcript doesn't read automatically. I mean, you can, if you look, you can see the timing. But for the most part, it doesn't-

Leh Meriwether: It doesn't reflect that.

Todd Orston: ... read very easily and reflect how much time you're taking to answer.

Leh Meriwether: So, all right, and just remember, if there are some bad facts, don't try to hem and haw around them. Just answer them. Just let your lawyer know ahead of time, "Hey, yeah, I cheated on my wife, and I'm going to have to, if he asks me about it, I got to answer or plead the Fifth." You could plead the Fifth and have that conversation about it because technically, in Georgia, adultery's still technically a crime. But we should have a whole show about the Fifth and how you can use-

Todd Orston: Yeah, but-

Leh Meriwether: [crosstalk 00:20:08] be used against you. But-

Todd Orston: And also that it doesn't ... Just because it could cause you embarrassment, all right, or hurt you in the context of the divorce doesn't mean necessarily ... it doesn't mean, not necessarily, that you can just plead the Fifth. It has to be something that could result in you being prosecuted or it could ... So you can't just be like, "Yeah, that really makes me look bad so I will plead the Fifth." That's not what that's for. It is a tool so that you can't engage in self-incrimination. You can't say something that will automatically then subject you to a criminal sanction."

Leh Meriwether: And I'd add that while I said this is not a trial, you're not at trial, that's no excuse not to be prepared.

Todd Orston: Oh, sure.

Leh Meriwether: If you previously answered interrogatory questions, you need to read them before your deposition. You should read as many emails, if this ... like a contested custody and there's been a lot of email exchanges, try to read your emails ahead of time. You don't have to memorize them. Just remember the exchanges. So do your best to be prepared. You can talk to your lawyer about what that might look like in your case, but do that. So I'm rephrasing answer the question. Don't volunteer information. This goes back to you don't have to necessarily ... You have to tell the truth, but you don't have to reveal all the truth. So volunteering information is almost always bad, and you-

Todd Orston: Well, what do you mean by that? What do you mean by, "Don't volunteer information?

Leh Meriwether: Because sometimes you have lawyers on the other side that don't prepare or they don't how to take good depositions, so they ask a question, you say, "Yes." And there may be some information out there that could be harmful to you and to your case, but they don't ask a follow-up question. So you've told the truth. You've answered their question truthfully, but then they, "Well, why is it? Why was your answer to that question yes?" And that's a big, broad question where you do have to answer the question, and I have to also answer the fact that we're almost out of time. When we come back, we're going to keep talking about how to get ready for a deposition.

Todd Orston: Hey, everyone. You're listening to our podcast. But you have alternatives. You have choices. You can listen to us live also at 1:00 AM on Monday morning on WSB.

Leh Meriwether: If you're enjoying the show, we would love it if you could go rate us in iTunes or wherever you may be listening to it, give us a five-star rating, and tell us why you like the show. Todd, now that you're comfortable with the silence, are you ready to go?

Todd Orston: Oh, Leh, with you, I'm always comfortable when it's silent.

Leh Meriwether: Welcome back, everyone. I'm Leh. With me is Todd. We're talking about depositions. How to give a great deposition actually is what we're talking about, and we've been explaining what depositions are. We've been talking about what things lawyers do to get information. The last segment, I made Todd feel very uncomfortable by getting quiet. Of course, I didn't tell him what I was going to do ahead of time, but that's one of the tricks is being ... You have to learn to be comfortable with silence when you're the deponent. If someone asks you, "Did you say hello to your wife on Friday the September 16th?" "Yes." That's all you need to say, and then if it's quiet, don't say anything else. You've answered the question.

Leh Meriwether: Don't volunteer information. That doesn't mean be evasive. When I say, "Don't volunteer," that just means perhaps that day at the Friday, September 16th was a day you'd gotten in a knock-down, drag-out fight with your wife and you don't have to explain all that. It is the requirement of the lawyer to ask you the questions to get the information they need.

Todd Orston: Yeah. Now, I will say this. There's a little bit of art to this because I have seen some people engage in this behavior, take what we are saying right now to heart, and it becomes somewhat obstructionist where if you're talking about something serious like adultery or drugs or alcohol or just bad behavior or anything, I can understand and you're 100% right. If it's something very, very simple or something, you know, "Did you go to college?" "Yes." Okay. Yes, you can do that. If you are able to, I would say, "Yes, I went to the University of something and graduated whatever." Now, what you're doing is you're expediting because you know where the questions are going.

Leh Meriwether: Right, but you [crosstalk 00:24:52]

Todd Orston: And it's not hurting you, and-

Leh Meriwether: But if they'd asked a previous question about high school and they had all these specific follow-up questions, you could volunteer that information.

Todd Orston: Yeah, but you know what I'm saying because I've seen people where it is ... They take what we're saying to heart, and it is, "Yes." "No." "Yes." "No." Now, understand when you're doing it on something as simple as things like, "Where did you go to college? Did you go to ... " then-

Leh Meriwether: They're not critical to the case.

Todd Orston: They're not critical to the case, but you have to be aware of where they're going and you have to be just very careful and make sure that you are so confident in the facts and the issues in your case that you're not going to volunteer something. But you could cut two hours off of a deposition by not being an obstructionist on the unimportant stuff. So just, when we say, "Yeses and nos or just get right to the quick answer, answer it, get in, get out," understand that there are moments where you can try and expedite things. And I've even told my client, "Go ahead. Answer it. Give a little bit more information just because you know they're asking about college, so that could be five questions as opposed to you just give one answer and you're out."

Leh Meriwether: I'm glad you brought that up because one of the principles in depositions is that you can take breaks at any time, and so sometimes ... And I've had that case where just a lot of this ... I'm speaking to the listeners now. The information that we're talking about, years ago, I put together a video for all our clients to watch, and all this information is in the video. It's a long video because there's a lot of great information in it, but I did have a client that took this ... You want to talk about this client, he executed every single principle in this to the letter to the point where I said, "Hey, may I take a break?" And so we took a break, and I said, "Okay. On these questions, I want you to give a little more information," because there was actually the guardian was in the room, and so-

Todd Orston: They were looking very obstructionist or at least-

Leh Meriwether: Well, it didn't look obstructionist, but I think he was holding back a little bit too much. So I said, "Look. All right. Give a little bit. You can go 30 seconds, maybe 45. Just give a little bit more information, but you're doing a great job." So I had to reinforce he was doing a great job-

Todd Orston: Sure. Of course.

Leh Meriwether: ... and then he did. He went back on the record. He gave a little bit more information, so the guardian would start taking notes. The thing was, the guardian wasn't taking any notes and I noticed that. And so he came back and they'd ask a question. I wish I had some good examples, but that maybe ... Anyways, it would make the case go way too long, I mean, the show go too long.

Todd Orston: Yeah, but the point is it's a balancing act. You don't want to volunteer. On the important stuff, like I said before, make the attorney do his or her job. They will ask questions and they will follow up on those questions to get the answers that they're looking for. It's not your job as the deponent to spoonfeed information and think about what they're looking for and just hand on a silver platter all of that information to the questioner, to the attorney.

Leh Meriwether: Yeah, and remember to refer to your attorney ... Well, sometimes you can't ask your own lawyer in the middle of a deposition, but perhaps they ask for, "Hey, can you turn over this specific document?" And you can say, "I will confer with my attorney, and if my attorney believes this is a document that I should produce, I will produce it." So you can keep that inside of your answer so that may be ... You may not want to say, "Yes, I'll turn over that document." You want to say, "I'll confer with my attorney about whether I should turn that document over." And keep your lawyer in it.

Leh Meriwether: So remember, so restraining answers. Let's talk about that, because there is a balancing act. What you don't want to do is necessarily suggest the next question for the person. Like you said, make the lawyer do their job. So here's an example. "Did you discuss with your spouse your desire for a divorce on Wednesday, December 15th?" "Not at that meeting." Well, now you've just suggested there was another meeting, so the answer ... That's not the best answer. The better answer is-

Todd Orston: "No."

Leh Meriwether: "No."

Todd Orston: And then I have seen so many attorneys, both in trial and at depositions, where they have a witness, "on the ropes," as they say, to use a boxing metaphor, and they just walk away. They just stop, where it's like, "Oh my God. Don't answer that. Oh, don't answer that. Don't ... Oh, they're done. Oh, wow. Fantastic." And all of a sudden, it's like, "Wow. Had they only asked a couple more questions, they would ... " But if you had just volunteered everything, then, A, you took all of the effort and then the work that was necessary by the attorney, you took that away from them. You handed it to them, and you also may have ruined a situation where they just didn't even follow up. So to your point about, "Did you do something at a certain meeting?" "No, I didn't do it at that meeting." You've guaranteed more questions are coming, for the most part.

Leh Meriwether: So the follow-up question, if you say, "Well, not at that meeting." "Did you discuss your desire to get a divorce at another meeting with your spouse?" "We discussed it on Friday." Well, you don't have to say that either. You can just say, "Yes," because then the follow-up question might be, "Did you discuss your desire for a divorce on Friday, December 17th?" And then, another bad answer, "We talked in detail Friday about getting a divorce, but we never agreed to schedule an appointment with a marriage counselor." So again, volunteering too much information. The right answer would have been, "Yes."

Todd Orston: That's right. And that's not being an obstructionist. That is just answering the questions and also guaranteeing, or ensuring, rather, that you are not giving too much and you are making the attorney basically earn their keep. "You want to ask me questions. You brought me here for this deposition. Fine. Ask me the questions. If you want me to follow up or you want to follow up with a ... fine. Done. But I'm going to ask ... or answer, rather, what you ask me, and that's it." And an attorney can't get angry at you. Well, they do sometimes, but the attorney who's with you will control that, and judges can't get angry. It probably would not even come up unless you were just being so difficult.

Leh Meriwether: It comes up when you're being evasive. Say, "Well, did you go over to her house that night?" "Well, you see-

Todd Orston: "What do you mean by house?"

Leh Meriwether: ... that night was ... It was real foggy, judge, and my car wasn't working and it was hard to start. And I thought about calling an Uber and ... " The judge is like, "Just answer the question."

Todd Orston: That's right.

Leh Meriwether: All right, so the next point, principle, is listen to the question. Next to telling the truth, listening is probably the second most important principle and it is often the hardest principle to follow. So testimonies, it's made up of questions and answers, and even more important is articulating the answer that answers the question because sometimes you're in such a rush. You hear the first part of the question, and you want to tell your story. You want to win your case and the deposition. You start to answer the question before you hear the full question, and sometimes I've had people interrupt me. It makes it hard for the court reporter, number one, but number two, all of a sudden I got information that I wasn't actually expecting because the person didn't hear my full question.

Todd Orston: Yeah, and I think you hit the nail on the head. The deposition is not your time to shine. It is not your time to tell your entire story. It is not a trial. It is not a hearing. It is the other party trying to secure evidence that will help them in their case. They're going to ask questions. And at a trial, in the future, all that will come up are the little tidbits, the little points that they want to use. It's not like you then get to show all the great points you made.

Leh Meriwether: Yes, that's true. That's true. And you get to tell that side of your story at the trial through what's called direct examination. And we will be directly back and continuing to talk about how to give a great deposition.

Leh Meriwether: I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB. So you can always check us out there as well.

Todd Orston: Better than counting sheep, I guess.

Leh Meriwether: That's right.

Todd Orston: You can turn on the show, and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very soft.

Leh Meriwether: Wait for it. Wait for it. Oh, I'm still waiting. Everyone, I'm Leh. With me is Todd. We are partners at the law firm of Meriwether & Tharp, and you're listening to the Meriwether & Tharp Show. If you want to read more about us, you can always check us out online,

Todd Orston: So what am I waiting for?

Leh Meriwether: You're waiting for the entire question.

Todd Orston: Oh. Got it.

Leh Meriwether: That's the next tip.

Todd Orston: All right.

Leh Meriwether: Wait for the entire question, because I suggested this was going to be the next tip with the last example-

Todd Orston: Yeah, I'm still waiting for you to clue me in on some of these things you're going to do. I'm going to keep waiting.

Leh Meriwether: Wait for the entire question.

Todd Orston: Yep. Yeah. That goes into what you were talking about before where, when you're on trial, I get it. You have a story. You want to tell your story, and you're being asked questions. You want to jump in and tell your story, and sometimes, unfortunately, when you're in that mode of, "I want to tell my story," you stop listening to the questions. You stop realizing that's not your moment. You have to answer the questions and be very strategic how you answers questions. Get through that part, and your attorney will absolutely give you the opportunity to then tell your story in a controlled way. So, just be very careful.

Leh Meriwether: And when you're wanting to tell your story, you want to fill in gaps. So sometimes, you want them to ask you a certain question, but they don't. And then you suddenly start answering a question that was never asked. So avoid the need, the feeling that you want to fill in some gaps in the story because this is not where you tell your story. This is just where you answer questions truthfully. Okay. Don't give illustrations.

Todd Orston: Like sketching, like you bring a sketchpad and you tell-

Leh Meriwether: [crosstalk 00:35:54]

Todd Orston: ... you give your answers with cartoons?

Leh Meriwether: Where you're speculating.

Todd Orston: Oh, got it.

Leh Meriwether: Don't speculate. Try not to give examples, unless you're specifically asked, "Well, can you give me an example of how your wife slapped you in the face," or, "Can you give me an example of how your wife spent every dollar you ever owned or ever made?" You don't have to explain unless you're asked to explain. So, again, they'd have to ask, "Well, can you explain to me how your wife got from the car to inside the house when you were laying on top of her," or something like that. These are from family violence cases.

Todd Orston: Yeah. Clearly.

Leh Meriwether: And you want to keep your answers short. So even when they do ask for you to explain it, you don't have to give a blow by blow. Give a very general answer. "Well, she got out of the car, and she went inside and she yelled at me."

Todd Orston: Yeah. Understand the more information you give, the more chance that there is for them to poke a hole in your story. Keep it simple. The less simple it becomes, the more opportunities to basically attack what you've said. And once they attack what you've said, if they can poke enough holes in it, the boat sinks, meaning the judge then maybe doesn't find you credible anymore. And if the judge doesn't think you are credible on one issue, the judge may not think you're credible on all issues. So that's why keep it very simple.

Leh Meriwether: And another pro tip is to put a pause between the question and the answer. And even if it's your name, "Well, what's your name?" "Leh." It's not that you didn't have to have the pause. It is just that you're creating that, "I'm going to create brief gap to, number one, make sure the whole question's asked, number two, think through my answer, and so you don't-

Todd Orston: You always get stumped on that one.

Leh Meriwether: Only once in a while. All right, so-

Todd Orston: But you're right. You're right. And that goes to think before you speak.

Leh Meriwether: And here's another reason why you want to pause between the question and the answer. Sometimes your lawyer will object. There are objections that can be made during the course of a deposition. Most of them are waived or reserved for a final trial, but one of them that often is not is the form of the question. So sometimes you may be asked what's called a compound question where multiple questions are actually encompassed in one question. And so that could be a basis for an objection. When your lawyer says, "I'm going to object as to the form of that question," it's a compound question, you need to listen to that. Sometimes it's a hint from your lawyer that, "Hey, he just asked you 10 questions inside of the same ... what sounded like one." And listen to their objection.

Leh Meriwether: Now, most of the time, you still have to answer it. But they have preserved that objection for the record, so if they try to use it against you in court later on, they can say, "Well, judge, which question was he actually answering because the," quote, air quote, "'question,' that the lawyer's claiming that was made actually had four questions built into it." And then unless it's based on privilege, you go forward with it. So maybe they object, say, "Well, what did you tell your lawyer?" Well, that's, "Objection, attorney-client privilege," and you don't have to answer that.

Todd Orston: But if you jump right into the answer and you start talking about it-

Leh Meriwether: You've waived it.

Todd Orston: ... you've waived it. The answer's already out there, and your attorney may be scrambling to object, but it's already there. It's already out.

Leh Meriwether: And another very important thing is to make sure you're answering the question ... Don't guess as to what the question is.

Todd Orston: Yeah. It's not a game show. You're not scoring points or getting a, "Brand new Buick," by answering it the right way.

Leh Meriwether: But if what you're asking me is X, Y, and Z, then my answer is 1, 2, 3." No. Don't do that. Don't play that-

Todd Orston: Don't play that game. That's right.

Leh Meriwether: Ask for clarity. [crosstalk 00:40:07]

Todd Orston: That's right.

Leh Meriwether: "I'm not sure I understand your question. Can you say it again?" Maybe you didn't hear it. Maybe your mind drifted off.

Todd Orston: And let me also be very clear. If you don't have the answer, don't make it up. Just because they asked you the question, if you don't know, you say you don't know. If you don't recall, you say you don't recall. The attorneys have tools to then refresh your recollection and bring evidence to your attention, or if you don't recall, the attorneys will then ... It happens all the time. "Okay. Do you have documents that maybe would refresh your recollection?" "Yes." "Do you have them here?" "No. I did not bring them here." "Okay. Can you, after this deposition, please provide, through your attorney, those documents?" "Yes, absolutely, I will," all right? But now, you didn't say something, potentially, that could get you into trouble, and it may not even be correct. So again, think about what you're answering and how you're answering, and don't just answer because you feel like one is due.

Leh Meriwether: Yeah. I had a case where I had to ask him a question, and the person said ... I said, "Well, isn't it true that you told your wife to ... " I'm going to insert expletive here, "off?" And she said, "I can't believe you talked to me that way"? "I would never have said something like that to her." And then I pull out an email where he said that exact thing. "Oh, well, maybe I said it this one time." "Is it possible you may have done it more than once?" "No, that would have been the only time." I pull out another email. So the third time I did this, he says, "I'm not really sure, because as soon as I say I'm sure, I'm sure you've got an email saying the opposite. So I'm going to say, I'm not sure." And then I said, "If I handed you a document, would it refresh your recollection?" And at that point, he said-

Todd Orston: What you should have said is, "The one thing I'm sure about is that's the one honest thing you've answered, which is I've got more emails and-

Leh Meriwether: No. Well, we usually don't say that. That's mean.

Todd Orston: No. No. We don't get snippy.

Leh Meriwether: Yeah. We want to, but we don't. Okay. And another natural tendency, going back to the ... is to make assumptions. "Well, I'm going to assume they're asking me about this," and then you answer the question. And so you're giving the wrong answer for a different question. That's why don't make assumptions. You can be friendly, but just ask for clarity.

Leh Meriwether: Another thing is ... This goes back to why it's so important to slow down and listen to the question. Some questions, you can't answer. And here's an example. "When did you stop beating your spouse, Todd?" Well, Todd's going to say, "I can't answer that question," and the reason he can't answer his question, because he never beat his spouse.

Todd Orston: Because remember the question, if you're breaking it down technically, is when? So what they're trying to do is obviously trick, and so, "When did you stop?" "Well, when? I can't answer that question." "Why can't you answer that question?" "I don't beat my spouse." But you've now made the attorney do the work as opposed to just trying to offer maybe some information that could be used against you.

Leh Meriwether: Yeah. So and that's a situation where it's okay to give a little bit extra information. "I can't answer that question." "Why can't you answer that question?" "Because I never beat my spouse." And that actually came from a case, so that was ... You and I, when we take depositions, we're there to gather information. I want to be clear. There are some attorneys out there that they are trying to trick you.

Todd Orston: Or bully you-

Leh Meriwether: Or bully you.

Todd Orston: ... or scare you into a settlement because they're basically saying, "Hey, you think this is bad. Wait until I get you in court." And they're hoping that that will impact and influence you to settle. Don't-

Leh Meriwether: You know what's also bad?

Todd Orston: Are we out of time?

Leh Meriwether: We're out of time.

Todd Orston: I blame you.

Leh Meriwether: You know what? Of course, it's always my fault. So, all right, there's actually a lot more information we want to cover, so why don't we just pick this up where we left off next time?

Todd Orston: Sounds like a plan.

Leh Meriwether: All right. Well, don't go away. Next time we come back, we're going to finish up talking about how to give a great deposition. There's a few more tips and tricks that we want to go into that you definitely don't want to miss so that you give a great deposition. Thanks so much for listening.