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Episode 145 - How to Give a Great Deposition Part 2

Episode 145 - How to Give a Great Deposition Part 2 Image

10/25/2019 2:39 pm

Leh and Todd wrap up their discussion of how to give a great deposition in this episode. When you tune in, you will continue to learn about the techniques used by opposing counsel. You will also learn how a deposition can really wear you down as the day goes on. Leh and Todd talk about how to remain vigilant throughout the deposition to be aware of what is going on and make sure you give great answers throughout the day.


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 & Todd and you are listening to the Meriwether and Tharp show. Here you'll 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

Todd Orston: How are you doing Leh?

Leh Meriwether: I'm doing good. I was tripping out because I was just getting excited about finishing up deposition-

Todd Orston: Whatever helps you sleep at night.

Leh Meriwether: ... Well, if you had listened last week, you would've heard that we talked about how to prepare for a deposition, how to not just prepare for a deposition but how to give deposition testimony and tips and tricks and talk about trips, trips? Well, actually-

Todd Orston: I think we're done here today or at least you are.

Leh Meriwether: ... How lawyers will try to trip you up by such things as the silent treatment and that sort of thing. We're going to keep going on that and try to finish up this hour. There's actually a lot of information. If some of it sounds repetitive well, there's little nuances to a lot of these material and we just want to obviously sometimes repetition is a good thing and the more that you can process this so when you get into the deposition the better your testimony will be.

Todd Orston: Yeah, we're spending all this time because you have to understand that just going for a moment, back to the basics. A deposition, it's a sworn statement. It ends up being a recorded statement that you swear to the accuracy of that statement. Once it's done your answers can be used against you.

Leh Meriwether: Yup.

Todd Orston: You are locked in and that's why there are some attorneys who are very good at taking depositions and they will get you to say things. Sometimes it may not even be what you meant, but then it's used against you later on and that's why it is imperative that if you are heading into a deposition, prior to, I mean then take the time, understand what your rights are in terms of how you need to answer the questions, do you need to just jump right into an answer? Can you take a moment to think? Do you have the ability to take a break? Because once you're done, that statement absolutely can come back and bite you.

Leh Meriwether: Yeah and to be clear, most of the lawyers when they're taking your deposition, they're really there to get information but there are ways that you can elicit more information and so that we're talking about those, I don't know if I want to call them a trick per se, because they're not trying to trick you. They're actually trying to lock you in and get as much information from you out of a deposition because that form of discovery is probably the most expensive form of discovery out there because you're paying for a court report, there's a lot of prep time. The deposition could take all day and they're trying to get as much out of you as possible and your goal is to get out of that deposition without doing any damage to your case. Let's pick up now ... you know what, maybe we should have listened to where we stopped the last time. I've got some notes and I think where I have the notes is where we left off but if we said this last time, just ...

Todd Orston: No, this is great. I mean I think while we're recording you should talk about how we didn't prepare for the show. This is great. No.

Leh Meriwether: We prepared. We've got 50 pages of information.

Todd Orston: Yeah. Maybe before we started recording, I should've become an attorney. Really? You need a license?

Leh Meriwether: We're not going to go back there again are we?

Todd Orston: Had I only known.

Leh Meriwether: You only know what you know and a lot of times we may make assumptions out of a need to please sometimes, we want to give an answer even if we don't know the answer. If you don't know the answer, it's okay to say so.

Todd Orston: It is absolutely okay. Now, where sometimes people who are being deposed make a mistake, they start to say, I've been in deposition, I'm sure you have also where the party being deposed. Their mantra is, I don't know and it can be, "What's your middle name?" "I don't know." "Really? Well, that's kind of ridiculous." And it's a bunch of questions like that and so you will get yourself into some trouble and by that I mean if you go into a deposition thinking that you can just play games, not answer questions, say you don't know to everything that can result in sanctions.

Todd Orston: What ends up happening is if you're really bad posing counsel can even potentially stop the deposition, petition the court for assistance if you will and ask for sanctions and you might have to pay a bunch of money because you have to come back on another day and you have to be reasonable. You have to, if you're asking or being asked rather questions that you really do have an answer, saying I don't know with a good attorney that's not going to be acceptable and it could land you in some trouble.

Leh Meriwether: Yeah. A lot of times people would want to say, I don't know, because they're being asked about some unpleasant facts. There may be they're being asked some hard questions. Maybe you're being asked something that you don't want to admit. You know what, if it's a bad fact and you've talked about with your, just admit it. I mean, if there's some issues with like where you might, maybe you should plead the fifth. That's what you need to talk to your lawyer about. That's a completely different issue but just trying to say, I don't know, just makes you look, it's almost an admission for all practical purposes it can be. When everybody's like, "You were in the room. How do you not know whether you hit your wife's arm or not?"

Todd Orston: Yeah, and let me also say this, you should not be making those determinations for the first time when you are at the deposition because the one thing, we're jumping right into your, the process, you're at the deposition, you're being deposed, okay. You should have already spoken with your attorney and strategize, meaning figured out how you are going to answer certain questions, what information, not just what information you're going to provide, but how you're going to provide it.

Todd Orston: As they say. It's not just what you say, it's how you say it. You can say something one way and it looks really bad but if you just say it differently, you're still telling the truth. You're still being accurate but maybe it doesn't paint you in such a negative light. You should already be working with your attorney on the strategy that is going to go into you answering your questions at the deposition.

Leh Meriwether: Yeah, and what I usually tell folks that, because this information actually comes from a video we have, is to watch the video. If there's anything that you feel really uncomfortable about answering questions about, write those down and sit down with your lawyer and go over those. Focus on the ones that you're most nervous about, how you feel uncomfortable and you all can work on a way on how to answer the question, not what you should say, because the what I mean, you got to tell the truth that's tell the truth but sometimes how you deliver that, I mean, how you deliver that information can make a big difference. All right. Never guess on the answer. Stick to what you know.

Leh Meriwether: Sometimes it's okay to make reasonable estimates or approximations but only if you have a sound basis to do so. Make it clear when your response is an estimate or approximation. "I think he was drunk." "Well, do you know if he was drunk or you think?" "Well, I didn't do a breathalyzer on him but his eyes were all bloodshot. He was slurring his words. He couldn't walk straight. I wasn't about to let him get in the car and drive off with our children. Yeah, I knocked the keys out of his hand. I did hit him because I didn't want him to drink and drive." "You didn't know 100% for sure but you saw a lot of visible signs that supported that conclusion that you had."

Todd Orston: Yeah, and once again, this comes down to the strategy, the preparation that goes into a deposition and that's why we say this is one of the most expensive types of discovery that you can engage in because not only do you have to spend an entire day at the deposition but there is prep work. There's significant work that goes into preparing a witness for a deposition. Really when I tell people or talk to people about guesswork, it really should be something that benefits you and you should have already strategized about this but it should be something that benefits you. If it could even remotely hurt you, then to be honest with you, shouldn't be guessing. You should say, I don't know. I don't have that information and I can't really offer an opinion as to it.

Leh Meriwether: Here's an example, sort of midway between that. They asked, "Well, did you ever talk to your husband about taking your daughter to see the orthodontist." And because maybe there's an issue about co-parenting or like a co-parent and you say, "I did, I talked to him on September 29th at 1:30 PM in the afternoon. I know for a fact." Sometimes giving that much detail, it may be too much because it may not have been at 1:30. It may not have been on that day. You could have talked to them later and then they produced an email showing where you talk to them later and now you kind of look like a liar. You might want to say, "I think it was two or three days before the appointment and I talked to him about this appointment and I scheduled it. I asked if he wanted to be there. This was based on the recommendation of the dentist. Do you have any issues with it? The exact time, I can't remember. There's probably an email that I followed up with it. If I could see the email, I could give you an exact date and time."

Todd Orston: And very quickly we talked about the whole, if somebody asks you what time it is, you'd say what time it is. Don't tell them how to build a clock. When someone asks you a question, you don't want to give a three page statement but you also have to balance that against, you don't want this to be a 42 hour deposition. Okay. Coming back on multiple days. Sometimes you have to just think about it. "Did you graduate from high school?" "Yeah. I graduated from this school on this date. Thank you very much." You've given more information.

Leh Meriwether: Yeah. You could answer, "Yes, I graduated."

Todd Orston: Yeah.

Leh Meriwether: You could leave it that simple. It just depends on-

Todd Orston: But then that means that probably three or four other questions are coming, which means you just wasted probably three or four minutes just on what school you attended.

Leh Meriwether: ... and what we're not going to waste is our time where y'all ... We're going to continue to dive into up next how 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 like counting sheep I guess, right?

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: Welcome everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp and you're listening to the Meriwether and Tharp show. If you want to read more about us, you can always check us out online Well, today we are continuing to talk about depositions. We started last week going into how to give a great deposition. We're continuing that this week and we're going through tips and tricks and tips for you to be aware of tricks that lawyers may use. I don't want to say tricks in a dirty sort of way but lawyers aren't trying to trick you. They are using tricks to get more information from you so you can be locked in on the record-

Todd Orston: Techniques. Let's call them technics.

Leh Meriwether: Yeah. I like that. Much better. Techniques.

Todd Orston: Well, it came from me.

Leh Meriwether: Thank you.

Todd Orston: Clearly.

Leh Meriwether: Why didn't you say that like last week?

Todd Orston: I was giving you an opportunity to rise to the occasion, Leh.

Leh Meriwether: Techniques.

Todd Orston: See that was a technique that I used to put you down.

Leh Meriwether: Yeah. Oh my. If only you were a lawyer, you would be so good.

Todd Orston: I know. Seriously. That's what my mom says.

Leh Meriwether: All right. Let's talk about, the next thing we're talking about is avoid offering a legal theory. You may be asked questions about a legal position in your case. Most lawyers won't do that but occasionally you might be asked something that requires some sort of legal theory. You're not an attorney. Just be careful to stick to facts and don't attempt to answer questions based on how you interpret the law.

Todd Orston: And again, I feel like throughout the show I'm going to be repeating this point. That is something that should be coming up in your strategy sessions with your attorney because family law, unlike other areas of law where there are theories, legal theories of a case, there is a gray area. There's sort of a blending because in other words we deal with legal issues like custody and there's physical custody and legal custody and based on certain facts and circumstances, who do you feel would be the best physical custodial parent.

Todd Orston: You're diving into what I'm going to call a legal theory aspect of the case but factually speaking, what they're really asking you is why ... if you're asking you to be the primary, why?

Leh Meriwether: Yeah.

Todd Orston: Don't get so caught up in family law, don't get so caught up in, well that sounds like they're asking for a legal theory. They may really just be in a legalese kind of way trying to get you to explain why you are taking a position in the case that you are.

Leh Meriwether: Exactly. Don't even try to explain why you think the law's in your favor. Remember, you're not there to win your case in the deposition. You're there to get out of the deposition with no damage to your case.

Todd Orston: Yeah. Why do you think the judge would award you that at trial? I don't know what the judge is going to do. I feel pretty confident in my case.

Leh Meriwether: Yeah. And then normally you would pause when that question ... remember to take a pause and listen to the question because you're going to give your lawyer the opportunity to say, "Objection. You're asking for him to draw a legal conclusion and he doesn't have to answer that or she doesn't have to." All right. Let's say they ask a question you know or they're referring to a document and you can't quite remember what's in that document.

Todd Orston: Totally guess. Just guess. Wait, I'm sorry.

Leh Meriwether: You're supposed to be helping people. No. You can ask to see the document and you can say before answering that question, "I need to see the document. What do you think the document says? You know what, without looking at that document, I can't answer your questions."

Todd Orston: It's called refreshing your recollection and you have the right to have your recollection refreshed and it's very refreshing. No, but you can ... again, you shouldn't be tricked and you have every right, if they are referring to a document and unless you have some kind of that recall, the photogenic memory or whatever, then-

Leh Meriwether: Photographic.

Todd Orston: ... Photographic. Photogenic. That's funny. I did say photogenic. That's awesome. [crosstalk 00:15:35]. I really am a good ... I'm a good looking thinker. That was great. Anyway, we'll cut that out. Anyway. No, but you have the right to review the document and you're not wasting time unless you really are that photogenic. Ask for the document and trust me, any attorney that you're working with will tell you that's usually the right course of action.

Leh Meriwether: On that same note about documents, when you're handed the documents, take the time to read them and you may never have seen them before but go ahead and read them and you can always give caveats with your answers so if someone says, "Well, what did it say on paragraph three?" I was like, "Well, I can read it to you but this is the first time I've read this document so I can't even, I haven't even seen this document before. I don't feel comfortable answering your questions. If you want me to read it on the record, I can do that." Or "Well, what do you think about this document?" You're like, "Well, let me read it again." Just make sure you know what's in it. Don't assume what may be in that document, even if it's a document you recognize, you may look at the first page, you go, "Oh, I remember that." Flip to the second page and a third page. See if there's anything else in there. Okay.

Leh Meriwether: When we're talking about documents, make sure you leave your papers at home. Don't bring in notes or papers to the deposition unless it's specifically clear like your lawyer told you to bring them because anything that you come into that deposition with the lawyer there can ask to see what you're looking at.

Todd Orston: And sometimes a well prepared attorney can also ask ahead of time and this goes to what you were just saying about if your attorney tells you to bring something. There many times where we've taken depositions where we will say, "Oh, we still haven't seen the mortgage documents or documents regarding this bank account or that investment account. Please bring those to the deposition." And so of course bring those but to your point, should you be bringing all of your documents, including notes and everything that you feel that you would want with you at the depo? No. Keep it at home. Go in, answer the questions and then use the tips that we're giving you in terms of if you don't remember something you say, "I don't remember." If you want to refresh my recollection, great or I can try and get an answer and then respond after the deposition.

Leh Meriwether: And it's not your job to do the other side's deposition. Don't feel guilty too if they say, "Well, what would it take for you to remember?" "Well, I'd probably have to look at this document to remember." "Well, why don't you go get that?" "Well, I don't have it here with me." Sometimes they can pause the deposition and make you go get it. They'll have to send more discovery for it but sometimes they actually ... I've seen lawyers frankly forget about it. They get some other information. They totally forget that you may not have answered a question, they move on. It is not your job. Your job is to get out of that deposition with minimal to no damage to your case. Don't feel like you've got to help the other side and that's probably the reason why lawyers are often conversational when they give depositions or take depositions should say because they're trying to make you feel comfortable talking to them and make them feel comfortable helping you. All right. You know what, if you're at home, this is one last tip on this point. If you're at home one day and you come across some documents that you were supposed to turn over but didn't and you finally realize they weren't turned over, go and tell your lawyer before the deposition. Say, "Hey, you know what, I just found some more documents that are may be responsive to what they asked."

Todd Orston: Yeah, and let me also say this, the most dangerous attorneys are the ones that befriend you. I mean that come across like, wow, this attorney is really nice and sometimes they have that ability to lure you into a false sense of I'm safe. I'm okay. Remember this is a deposition. They are trying to get and gather information from you that ultimately can and will be used against you in court. While you shouldn't go in there thinking that you just need to have your defenses up to such a point that you're not communicative, the flip side is don't be lulled into that false sense of security. Remember they're out to do a job and you're there to do a job as well.

Leh Meriwether: And so when you're giving your answers, it's generally advisable, like we said, to give short answers. There are exceptions to that. Like you gave one example. If they're asking about your background, it may be helpful to say, "I graduated from high school in 1998 in Tampa, Florida." You give a little bit more information just as ... because you know those questions are coming based on a pattern of questions before those but let's say you're asked a question about, "Why do you think you should be the primary physical custodian?" Well, that's a big, broad question that you shouldn't say, "Because I'm the better parent." Like that's not a good answer. That's too short in that situation. You want to be able to if you are asking for primary physical custody, in your case, you should be able to give a series of short answers. Like, I hate to say it, but bullet points, you know.

Leh Meriwether: "I feel like I'm a better parent because I have always done a lot of the hard work. I have done the homework with the children every night. I help them prepare for their tests on Thursday night for their tests on Friday. I'm the one who took them to the doctor's appointments. I'm the one to ... and I will be in the best position to continue doing that after we get a divorce." Just without really attacking the other side, you just say your strengths and you hit them rapid fire.

Todd Orston: Yeah, and there are things like in the law that attorneys and judges look at in terms of how to qualify who the best parent would be. You should already have been coached so that you understand what the strengths are and what you're relying on to take that position in your case.

Leh Meriwether: Yeah. Here's one more example. "What steps have you taken to co-parent with your spouse?" You're going to need to be prepared to give really rapid-fire good examples of how you've done that. When we come back, we're going to talk about a couple more examples of when you should give longer answers.

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, you're going to have to speed up because you just talking too [inaudible 00:22:40].

Todd Orston: Oh yeah but at least I'm photogenic.

Leh Meriwether: Well your memory might be.

Todd Orston: Which is very important for the radio.

Leh Meriwether: Yeah, that's very helpful. Hey, welcome back everyone. This is Leh and Todd and you're listening to the Meriwether and Tharp Show. Today, we've been talking about depositions and by the way, if you want to go back and you miss part of the show or you want to listen to it again, you can always find this show along with a transcript at All right. We got to move it along because we have so much material to cover.

Todd Orston: We're going on now a minute of you telling how we have to move it along. Let's just move it along.

Leh Meriwether: All right. We were talking about the length of your answers. Often short is the best but there are times when a long answer is better and so we had given a couple of examples, why should you be the primary physical custodian? What steps have you taken to co-parent with your spouse? Why do you think your marriage fell apart? Those are questions where you want to be able to, you don't want to talk all day about it but you need to be prepared to give some sort of, I don't know if rapid fire is the right word but if you can just give some very short concise reasons.

Todd Orston: Yeah, and also remember you want it to be consistent with other answers you may have given.

Leh Meriwether: Absolutely.

Todd Orston: You may have been asked that question or any question in interrogatories and if you gave a certain answer, you want it to be consistent. You don't want to say in an interrogatory, these are the important factors and then you get to a deposition and you miss half of those factors or you're talking about things you never even mentioned in your interrogatories. You really should be saying everything you said in the interrogatories and if you've thought of some other things, be clear. Hey, I remember in my interrogatories I said these things but you know what, I've given it more thought. There are some other reasons. All right. But be very clear that way. They can't try and use that against you at a trial in the future.

Leh Meriwether: Definitely talk to your lawyer before the deposition and brainstorm about what other kind of questions in your particular case could require long answers verse short answers. Okay, here's another thing. Make sure you leave the door open. Going back to how you may not have remembered everything at the moment, you're trying to stay consistent but maybe you've just remembered some stuff that you did not include in your interrogatories. You may want to say, "You know what, that's all I can presently think of. That's all I'm presently aware of. That's all I presently recollect." For instance, maybe they said, "Well, tell us every time your a wife or husband was home drunk." Well that could have been a lot of times. You can say, "Well, I can remember these three times. It seems like it was almost every night. I'm not saying it was, it just felt that way."

Todd Orston: Or there may have been other times but the ones that come to mind are date one, date two, date three. Now what you've done is you've left the door open that way if let's say you go to trial and they say, 'Well you say your spouse had a drinking problem but you can only recall three occasions. You said it only happened three times." "Well no, that's not what I said. What I said was I can remember specifically three but you know what, I went back and I did some additional searching in my notes and my calendar." Whatever.

Leh Meriwether: "I talked to a neighbor."

Todd Orston: "I talked to neighbors." And-

Leh Meriwether: "They reminded me of a party I forgot all about when he made a fool of himself."

Todd Orston: ... Exactly. Now you've left the door open to make that change.

Leh Meriwether: Right. You will be asked questions because as our job is to try to lock you into those three examples. We may ask as lawyers, the lawyer asking you questions, "Is that all? Is there anything else?" Try not to say, "Yes, that's everything." Unless it really is everything but if you are not 100% sure it's everything, you can say, "That is all I remember at this time." That's one of those examples where yes, may be the wrong answer. You want to say that's all I remember at this time.

Todd Orston: Okay. Let's talk about navigating interruptions because what-

Leh Meriwether: What do you mean by that?

Todd Orston: ... Let me tell you.

Leh Meriwether: How about ... I was kidding.

Todd Orston: Hold on, let me fix my hair and then I'll answer. Navigating interruptions. A trick, a technique that an attorney might use is you're giving an answer and before you're finished, they may jump right in and start asking you a different question. It may be they're just tired of your answer. It may be that you're saying some things that don't help them and they want to try and shut you down before you can give a full answer. You need to be very aware of the questions being asked and the answers you're giving and therefore navigating interruptions. What we mean is think about the question. Start to give your answer. If you get stopped before you've given an entire complete thorough answer ask to go back. Be very clear and say, "I know you moved on to another question, that previous question. I didn't give a full answer. I would like the opportunity to answer and give you my full response."

Todd Orston: If the attorney tries to stop you, you have the right. If you have an attorney, the attorney will know this and we'll say, "No. My client wants to put a full answer on the record. All right, and you would be able to. If you're doing this pro se, you can do the same thing. You say, "Look, I'm not moving on until you allow me to give a full, complete answer." Because really at that point, if they're looking then go, "Well, I'm going to take this up with a judge." Fine.

Leh Meriwether: Yeah. I was trying to answer your questions when you interrupted me.

Todd Orston: Exactly.

Leh Meriwether: And here's an important point because the court reporter is trying to write down everything. If you do get interrupted, let the other person finish answering their new question and say, "Okay, I'm going to come back to that, but I need to finish answering your other question first." Because if you don't come back and finish your question on the record, unless it's videotaped, when you read the transcript, it may not look like you were interrupted. It could just look like you stopped mid sentence and the attorney just asked a new question. Listen to it. You can always ask the court reporter to read back that question as well. Don't worry about trying to remember the question they just interrupted you with, finish your question and then say, "Mr or Mrs court reporter, can you please read back the last question that was asked?"" And they'll read it back and then you can answer.

Todd Orston: Let me also just make one other point. You cannot give 32 minute answers to questions. Meaning, if you are asked a question, yes, you should be and will be given the opportunity to give a thorough and complete answer. You can't be talking for, maybe not 30 minutes. You can't be talking for 5, 10 minutes and giving just a long answer. You will get an objection as to the responsiveness of your answer and it's going beyond the scope of the question that was asked. While you are entitled to answer the question, you have to be efficient in your answer. While we're sitting here saying you have a right to answer, I want to make sure it's clear-

Leh Meriwether: But that doesn't mean you just blub along and on and on.

Todd Orston: ... That's right. You can't just give a very, very long answer. You will get an objection from the attorney.

Leh Meriwether: And there may be cases where there is a very valid reason to give a very long answer but those are more the exception than the rule. All right. Here's something that's really important that people don't understand is don't be cute or funny. Sarcasm never shows up on the record.

Todd Orston: We hate it here. I'm sorry. Was that sarcastic?

Leh Meriwether: Yeah. When someone reads the transcript of this radio show, that sarcasm won't show up at all.

Todd Orston: We make jokes here. Yeah. We make jokes here. Deposition is not the time or the place for jokes or sarcasm. It's not the time to be cute or funny because then opposing counsel, if I were opposing counsel and I get an answer like that, I'm going to be bringing up to the court's attention at the appropriate time. "You think this is funny. We're in this case, we're dealing with these issues and you think it's funny, is this a game to you? We're trying to deal with these very important issues and now all of a sudden it looks like you're not taking the the whole process seriously."

Leh Meriwether: Yeah. A good example, someone says, "Did you hit your wife?" You're like, "Yeah, I hit my wife." Like you can hear the sarcasm like, "I didn't hit my wife." But on the record, all you see is yeah, I hit my wife. You cannot use sarcasm in a deposition. It just does not come across in the record. All right. Obviously with that, if you are a sarcastic person, Todd you've got to learn to control your emotions. Don't get angry, don't get mad because usually when you allow emotions to kick in, your answers get much, much worse.

Todd Orston: We've said this on shows before also as attorneys we look for, I mean and we like when we see opposing parties that we think we can push a couple of buttons and they're going to have an emotional reaction because that means when emotion takes over, logic goes out the window. The answers are usually better for our clients. Their reactions look better for our clients. In our case, when they're up on a stand, let's say if they're in court. If you go into a deposition and you can't control yourself in that environment, the attorney is going to be looking, going, "Oh, I can't wait to get that person in trial."

Leh Meriwether: Right. The better you do at the deposition, the more likely as man there's no buttons there to push. We need to settle this case.

Todd Orston: And the same thing goes for demeanor just very quickly. You need to control your demeanor. That includes the way you're talking, the tone of your how you speak.

Leh Meriwether: The facial expressions you make.

Todd Orston: That's right.

Leh Meriwether: In a videotaped deposition, they will show up then but even in a deposition while the facial expressions you make won't show up on the record if you like wince certain things, it's telegraphing that, "Hey, this is a hot button that could possibly be pushed to trial." Bottom line, just remain even tempered. Don't argue with council, be courteous and forthright. That doesn't mean that you have to cave in and agree to everything. You can simply say, "No." You don't have to argue with them and we can't argue with the fact that we're going to be right back to continue talking about depositions. I just want 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. You can always check us out there as well.

Todd Orston: Better than like counting sheep, I guess, right?

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 softly.

Leh Meriwether: Welcome back everyone. This is Leh and Todd. You're listening to the Meriwether and Tharp Show. If you want to read more about us, you can always check us out online, and you can catch past episodes of this show at I'm talking quick because we have one segment left to hit a lot of information and let's just go rapid fire. These are all pretty short things and some might say common sense but often common sense is not common action so we are going to hit them anyways.

Todd Orston: For the first one we're going to take our own advice in terms of speaking very quickly and efficiently because it is intentionally form your answers. Strive for clarity and simplicity in your answers. Use short words and instead of more complex words and phrases and try not to use any slang. Definitely don't use cursing or any profanity. The only time that's appropriate is if you are quoting somebody who engaged in that behavior. If somebody said, "F you." And it's part of let's say an allegation of abuse, then absolutely say exactly what was said so that it's in the record.

Leh Meriwether: Yep. All right. Always. Always. Maybe always, never say never. Always avoid always. Whenever you say never or always, you're locking yourself into a single position. He always came home drunk and then all they have to do is show a few times-

Todd Orston: Every night. Every night, 365 days out of the year he was intoxicated. Came home drunk. Now you're exaggerating and therefore you're not believable.

Leh Meriwether: ... Right. Avoid the absolutes because that just locks you in to a position. He never was nice to me. She never left the home without the credit cards. I don't know. It's just ...

Todd Orston: You shouldn't have stopped. You always go a little too far.

Leh Meriwether: Proceed. All right. Proceed with caution. There may be a situation where you have absolute statements. It is rare. I'm not sure if I've ever seen one where there was an absolute maybe one but ...

Todd Orston: He always maintained all of the bank accounts in his own name. He always purchased things in his name or her name. He always had or she always had that credit card. Yeah, then that's an absolute, that's okay but an absolute regarding behavior, especially negative behavior, it's impossible that it was always. It just like, it's impossible. It was never.

Leh Meriwether: Exactly. In that vein, not just with using never or always don't overstate or understate something. Stick to the facts because the more you exaggerate, the more you go, "Oh my gosh, this person's just ... he's all about the drama." Don't overestimate or underestimate. Keep it as simple as possible.

Todd Orston: Okay. How about this? Be very careful of this technique where an attorney might try to paraphrase things that you have said and remember, this is an attorney who is looking to benefit from your answer on behalf of a client. The paraphrase may not actually say what you wanted it to say. You have to listen and don't just agree. Say, "Oh yeah, yeah, that's what I meant." Or you don't say anything. It's like, so what you're saying is that, this is what you mean and then, all right, "Well, let me ask you the next question." No. If he's correct or she's correct, fine but if you listened and you're like, wait, that's not what I mean. That's not the whole point, then you need to be clear and respond.

Leh Meriwether: Listen very carefully. All right. Consider your health. I know this may sound weird but get a full night's sleep because if you're tired, it's easy to not listen and just think you hear a certain answer and answer wrongly. Sometimes getting a little bit of exercise right before your deposition could be helpful and if you know that you have issues concentrating, if you know you get hungry at a certain point in time, make sure that you plan to take a lunch break take an afternoon break to get a protein bar or a cup of coffee.

Todd Orston: Or bring one with you.

Leh Meriwether: I mean with you. Yeah.

Todd Orston: Most attorneys won't have a problem if you're like, "Look, my blood sugar is getting low. Do you mind if I just eat a Snickers bar here while we're going?" Absolutely. I don't care. Eat the Snickers bar.

Leh Meriwether: Right. I have never met at a lawyer that the only objection you might get is please finish answering my question on the table. That's it.

Todd Orston: And that's also when it's taking a break. Usually an attorney will say, answer this question and then we can take a break.

Leh Meriwether: Yeah. All right. Be careful about mental fatigue. That kind of goes along the same lines. If you start getting tired, that happens, you get mentally lazy and you will miss a question, you'll start slipping up and use the absolutes and that sort of thing.

Todd Orston: Yeah. What you don't understand, most people don't understand who don't do this for a living. An attorney, as an attorney, a full day in court in trial can be exhausting and the reason is, even though we're not breaking rocks on the side of the road or engaging in manual labor, that's exhausting. Using your brain and having to stay alert for 6, 7, 8 hours can be exhausting. You really need to, if you need to take breaks, like you said, you need to eat something, you need to walk around.

Leh Meriwether: Get some coffee.

Todd Orston: Do whatever you need to do because you cannot let your guard down.

Leh Meriwether: Just so you know, it's okay to take a break and talk to your lawyer. You can't do it mid question and you may not. If you're in a series of questions, you may want to let the other attorney finish answering him. I mean, finished asking you those questions but it's okay to actually take a break and talk to your lawyer. Don't be afraid to do that. All right. We kind of covered this but give consistent answers. If you've previously answered some request to admit or interrogatories go back and read them before your deposition so that you stay consistent.

Todd Orston: And also even within that deposition, one of the techniques that I like to use is I will ask a question on a certain topic and then I'll move on to another topic, maybe another topic after that but then I'll hit a couple of questions that tie into that first topic and what I'm trying to do is basically see whether or not there's consistency in the answers.

Leh Meriwether: Right, and even if they may appear unhappy with your answer, don't change your answer. If it is the correct answer, don't change it just to make the person happy.

Todd Orston: Human nature is to comply with requests and to basically give people what they are looking for and what they want. If you see a negative reaction, the human nature is to just say, "Okay, well hold on, let me fix that. Let me answer or give you the answer you're looking for." That's not your job and it definitely is not going to benefit you.

Leh Meriwether: The questioner's demeanor is irrelevant to the answers you give. That may be, it may be a technique to elicit a different answer from you. All right. Give yourself wiggle room. About, it was about nine o'clock that night. It was approximately, the meeting lasted approximately two and a half hours.

Todd Orston: Yeah. If they go to court and they say it was only 1 hour and 45 minutes, then if you locked into a specific number, you're lying or you're incorrect or your recollection is not sound.

Leh Meriwether: Use words. Sometimes people go uh-huh (affirmative) or they nod their head or shake their head. A court reporter can't take down body movements. You need to make sure you use words to answer. Yes, no, maybe. You've got to do that or here's an example. "Where were you when she threw the glass of wine at you?" "Well, I was by my chair over here and I moved like this to avoid the glass and knocked our daughter over." Well, that doesn't show up in the record anywhere. While you may want to give a demonstration, you've got to describe that. You can't just make the motions. All right. Helping the reporter to be accurate as important. Speak clearly in a voice loud not to be heard. Don't speak fast and speak one person at a time. It's okay to admit harmful facts.

Todd Orston: But again, this goes back to strategy. You should have already, if you know it's a harmful fact, you should have already worked on it with your attorney to come up with the best response on that issue.

Leh Meriwether: One of the things I ask is, attorney may ask, "Well, if any questions are not clear or if you don't understand it, ask that it be rephrased. Will you agree to do that?" Rather than responding, "Yes."" It's probably better to say, I'll try to do that." Again, you're giving yourself some wiggle room. All right. There's a lot of situations where a lawyer will ask certain things, they'll sort of lock you in and that's where you've got to give yourself wiggle room. I will try to do that. If they ask questions about, "Well, what did your lawyer say after that?" That's attorney client privilege. Your lawyer should object to that but always avoid answering any questions regarding any conversations that you may have had with lawyers or doctors or psychologist.

Todd Orston: And I'm not questioning the quality of representation but remember this is your case and if your attorney misses something but it's clearly something that's bothering you, a question that called for you to reveal attorney client privileged information and the attorney doesn't jump up and jump in and say something, make an objection, don't just give the answer because you feel like, "Well, I guess I have to." If it's something you really think that there's a problem, then stop and say, "I can't answer that." Let your attorney then run with the objection from that point.

Leh Meriwether: Yeah. The more clear you are with your answers, the more precise you are. You're displaying a level of credibility and that is critically important because sometimes, again, how you answer these questions can impact whether your case gets settled or gets pushed to trial. If you're very credible on the stand, it's going to make a huge difference.

Todd Orston: It is to a certain degree a beauty contest. They're trying to get information.

Leh Meriwether: Back to that-

Todd Orston: [crosstalk 00:44:11], the theme but as an attorney, I want to see what kind of a person I'm dealing with and what they're going to look like if we have to go to court. If it's somebody who's very credible, I'm going to be looking at my client going, we need to settle. We need to really figure this out as opposed to the alternative where I might go, I think you can get some good things from a judge.

Leh Meriwether: ... Well, I know one alternative we don't have is we can't keep going. That about wraps up this show. Hey everyone, thanks so much for listening and tune in next week because we're going to have our Halloween special.