Surviving an Evidence Deposition When Your Small Business is a Party to a Lawsuit

Regardless of whether your small St. Louis business is the plaintiff or defendant in a case, your opponent’s lawyers will likely want to depose you during the evidence phase of the case. During the evidence deposition, the lawyer will ask you to respond under oath to his questions, all of which will be designed to elicit information that supports one or the other side of the case. The initial part of the deposition will establish that you have the requisite knowledge and information to answer those questions, after which the questions themselves will delve into the substance of the issues that gave rise to the litigation. Litigants who are poorly prepared for a deposition might be tempted to use it as a platform to tell their side of the story. This may be an appropriate strategy at times, but the better strategy is usually to tell your story under the direct questioning from your own attorney at trial. If you are effusive at a deposition, you risk giving too much information to your opponent, who can use that information against you at a later time.

A few simple guidelines can help you to survive your deposition.

  1. Listen carefully to each question and answer only the question that has been asked. People tend to provide excessive background or to go off on tangents that are unrelated to a question. The more you limit your response, the less likely you are to give information to your opponent that can harm you later.
  2. Get comfortable with silence. If you have answered a question and your opponent’s lawyer does not immediately follow up with another question, do not feel obligated to talk further. If you are comfortable with your answer, you do not need to elucidate any further.
  3. Pay attention to your own lawyer. If your lawyer objects to a question, listen to that objection and adjust your answer accordingly. Your lawyer cannot coach your answers during a deposition, but he may be giving you subtle signals to be careful about your answer when he objects to a particular question. If he tells you not to answer a question due to some privilege or other reason, stay silent until he and the opponent’s lawyer negotiate whether and how the question should be answered.
  4. (Perhaps most significantly), tell the truth. You will be under oath to be truthful. If you dissemble or disguise the truth, you will hurt your own case. Your lawyer should advise you before the deposition on how to answer questions that deal with difficult facts. If you say one thing during a deposition but contradict yourself later during the trial, your credibility will be impeached and your opponent will gain an advantage before the judge.
  5. Get a good night’s sleep before a deposition, and ask to take breaks (or have your lawyer request breaks) during the deposition in order to keep you fresh and on your toes. When you feel fatigued, your answers might be muddled or you might appear to be hiding something. Stay alert as is possible.

No short list of guidelines can fully prepare you for an evidence deposition, and you should never consider a list like this one to be general or specific legal advice. If you have questions about surviving an evidence deposition and you want legal representation during your deposition, please contact us for a consultation well before the deposition date. The attorneys at the McKay Law Firm in St. Louis have extensive experience in representing clients during depositions and in small business litigation. We look forward to speaking with you about your own case.