Deposed!

Last week, I met with a client who had never been sued before. Not surprisingly, he was angered by the lawsuit's allegations, the potential exposure for money damages, the lost opportunities caused by having to sit with me instead of running his business and a whole host of other emotions - none of them good. We were preparing for his deposition which, for those of you unfamiliar with the term, is the questioning of a witness or party under oath and one of the three big days in a litigant's lawsuit (the other two are mediation and trial).

You can imagine how happy he was to know that he would spend a few hours being questioned (sometimes very pointedly) about the merits of his lawsuit by opposing counsel. As is common in this scenario, clients like to play lawyer or, at least, legal tactician. There are about 100 or so rules you can give your client for handling a deposition ("Answer yes or no whenever possible" or "Don't guess at an answer. Say you don't know"). None of them include what clients seem often inclined to do - try to outsmart the other lawyer or bully him by a being a bigger jerk than he expects he will be confronting at deposition.

If you ever find yourself in this situation, please don't try to be a bigger ass than the other guy or try to be trickier than he/she is. It's entirely possible if not likely that you are smarter than he/she is. It's also a certainty that you know the events about which you are testifying better than he/she does. It is, however, a certainty that the lawyer asking you questions has been trained to do this and can ask the questions better than you can answer them within the confines of the rules governing litigation. Trust me. I have never met a client who came out of a deposition with a stronger case because he tried to outsmart the other lawyer or put him in his place because he thought the other guy was being snotty. Never.