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[Music] I get a turn Steve Andre and welcome back to another exciting episode of litigation whiteboard okay so we are talking in this video about the deposition okay this is very important information this is the essential things you need to know if you're having your deposition taken and you need to make sure that you're dominating and mastering the deposition so that you give that good information you become a strong witness in your case okay we are licensed practice law in California and Arizona we take federal copyright litigation cases trademark and copyright nationwide so without further ado let's head to the attorney Steve litigation white board all right let's back this up okay we'll be back all right so what I want to do first of all is give you some context some people say well depositions I got a notice somebody's taking my deposition what do I do now let's put this in context for you okay so coming back over here if you can still see me basically what happens in the litigation process is somebody's upset somebody files that lawsuit that lawsuit may be filed in state court and may be filed ins in federal court okay there may be some other legal proceeding that you're facing but somebody is subpoenaing you to come and appear as a witness or you're the party in the case and you need to appear as a witness okay this may also apply if you're called as witness in a trial you get a subpoena and you have to show up and testify to trial so hopefully this is going to cover some of those basic things also by the way I think this is just important conversational two-way tips that should apply to everybody in daily life just some basic communication etiquette to help conversations get moving but let's go back so we have the lawsuit file somebody is making certain allegations you ran the red light you infringed my copyright you breached the contract it could be a thousand different reasons somebody suing each other so a lawsuit gets filed and certain allegations are being made so the job of the attorneys is to come forward and say well we need to either prove these facts or if you're the defendant we need to establish some defenses so forth and so on okay so what happens after the lawsuit is filed typically you have an answer sometimes there's a motion to dismiss or demur but let's assume there's an answer filed and what happens is the parties end up in what we call the discovery process discovery process and what that is really is where the attorneys for both parties get to do such things such as send form interrogatories you know questions we can send questions that the other party has to answer under oath we can request documents requests for production of documents and one of the other things we can do is set depositions okay we can send subpoenas as well that's another part of the process but we can set depositions the deposition is really just taking somebody's interview interviewing them some would call it interrogation call it what you will but getting their testimony under oath in front of a court reporter so that that information can be documented and used as evidence in a court of law if the case doesn't settle okay now realize most cases probably do settle probably ninety ninety-five percent of the cases do settle so sometimes this is going to be your only appearance in the case there may be times when the case doesn't settle however and you end up in court in court if you're not giving honest testimony if your transcripts aren't reading right and you get up in court and you testify under oath and you're giving different answers than you gave it your deposition then an attorney might just pull out your deposition and go hmm isn't it true on this day when I was you were in my office do you remember that and you were testifying that you did not copy this video do you remember that why are you saying something differently today is your testimony change so it can come back and read a deposition report that's created can come back to impeach you okay so it's important to understand how these things are used so we're in the discovery process let's check that off our box here now I'm going to give you my top ten tips this is my top ten attorney Steve's ultimate guide pass this around you may want to share this on your social networks if you like it give me some thumbs up on my video working are here for you okay goal the goal always in a deposition is to be calm relaxed do not get combative do not feel that you have to spar and fight with the other attorney you're going to probably go down the wrong path if you go down that path instead what you want to do closely listen to the questions answer the questions and go through the process okay we're going to talk about that but this is our top 10 to help you dominate the deposition as far as prevailing and coming out as a a credible witness that's what you want to be shooting for coming out as a credible witness that they go we're not going to shake this person this person has a solid story okay number one understand the process of depositions okay so a lot of people ask well what happens is am I going to court you know is the judge going to be there those kinds of things no this is done in a private office and usually the attorney that's setting the depo you're going to go out to their office you're going to have a location and a time in advance you're going to make sure that you free up your calendar so that you can go out there and do this deposition okay so it's in a private office you're really looking at about like one hour if there's hardly anything to talk about if there's a lot of facts in the case or you're more of a key witness it could go on depending on your state laws could go on you know five six seven eight hours okay um who's going to be there you're going to have the parties you're going to have your attorney if you have an attorney if you're just a party that's been subpoenaed you do have a right to get an attorney to represent you and appear with you but you can have both parties if it's a video deposition realize in place in California Arizona right practice you can set a video deposition and sometimes those are very powerful because instead of holding this up to the jury saying remember when you said this they can flip over to a video and say remember when you said this and you can see the face the facial expressions so that could be powerful so you may have a video Aquifer in there as well court reporter in the court reporter just so you know that's usually a certified court Porter someone whose job is to take down everything that's being said it all goes into a transcript the transcript then is distributed to all the parties and the the witness will have a chance to change their testimony in other words if you botched up or if the court reporter made a mistake you have a chance after the deposition to change some of your answers okay but usually it's best if you realize you made a mistake on the record it's usually best to try to clarify that while you're there having your deposition taken okay so that's really something important to think about okay so you have your Court Reporters I want to talk about the process another part of the process is brakes if you're there all day for a longer duration of time you may have lunch lots of times I see they serve spaghetti which I can't stand this the spaghetti don't ask me why it's an expensive spaghetti and salad you may want to bring your own lunch is what I'm trying to get to okay but breaks you'll also have breaks as the person who is taking the videos you will have a chance to take breaks okay so stay tuned for part two of this video we'll be right back okay back to part two so let's continue so you're going to have as we mentioned breaks and the ability to change the record if need be step number two tip number two understand the purpose of a deposition as I was mentioning it's to get fact-finding it's for the attorneys to find out what information you have that may be relevant to my causes of action in my allegations so it's always important to know what the objectives are of the attorney and also what your objectives are you may be the plaintiff you made it be the defendant so you want to know who's trying to get what you want to tell your story but you don't want to tell too much you don't want to be giving them free stuff so you want to make sure you sort of understand the objectives of the party and a lot of times that's tied in to the allegations made in the complaint or for the defendant it's the defensives set forth in the answer what we call affirmative defenses okay those need to be proven by the defendant most okay so it's fact-finding we're also trying to gauge the credibility of a witness are they credible are they liars or do they like to spar with the attorney are they angry or they combative do they have the information do they not are they guessing and speculating those kinds of things we're just trying to weigh who we're dealing with what kind of witness they would make if there was a trial okay and again as I mentioned the trip the transcript the written transcript that comes out that is evidence that can be used in a trial okay and again for impeachment purposes and also the discovery process when you take the deposition of 510 witnesses often times you can figure out as an attorney do I have a great case is it not quite as good as I thought is it even better than I thought do things come out in the deposition that made me go holy cow I didn't know that I'm going to add or amend my complaint you know those kinds of things so that's the purpose of the depo so step one understanding the process step two the purpose of the deposition once you know these things you feel a little bit better you feel a little more confident so you're not so scared of what you're getting yourself into or what you've been hauled into step three I'm going to talk real quick about your dress appearance medications and the point that I put there we'll get to that a second but anyway appearance some people say well how do I dress can I wear my Metallica tank top and you know you know cutoff shorts and whatnot it's probably best to dress with business attire general business attire maybe something you would wear if you were going to church something that I've got dress nice especially if you're having a video deposition taken you want to look nice you want to sit up straight in your chair you want to have nice mannerisms and the other thing that I mentioned is being rested if you know you're going to get your deposition taken at nine o'clock in the morning don't stay out partying till three or four and come in you know enough with a fog around you you know those things aren't going to they're not going to bear well on you you're going to have a tough day at the deposition the attorney is going to be ready to go and you're just going to find yourself at a disadvantage and you're probably not going to enjoy the process so anyway be rested medications and alcohol some people think they have so much anxiety of taking depositions of people that just are appear to be like on drugs and they can't really listen to the questions they can't respond I mean just kind of a total train wreck and you know they just make bad witnesses it's you know if they can't remember certain things and so what I suggest is don't take medications don't take drugs unless you need them I mean unless a doctor says you need them but the other attorney when they start taking the deposition are probably going to ask you have you been taking any medications that would alter your ability to perceive events and give honest testimony today if so what are you taking so you know be prepared that's probably a question that will come up sometimes it does sometimes it doesn't um but that's your dress and appearance so those are your top three things to be thinking about sort of background things this is the context that you're going to find yourself being deposed in number four I'm going to talk about this you're able to prepare in advance with your attorney okay so this is very important to understand is that you have the right and the ability to prepare in advance of your deposition and most good attorneys will prepare their clients in advance you do some role-playing you review some of the documents that may be pertinent to your testimony for example when a deposition notice is sent out it usually tells you this is the time you need to appear we're taking your deposition it's done by video or maybe not video expect demos are expensive you know four or five grand or more so they can be expensive but they're going to tell you where to appear so forth and so on so the ability to speak with your attorney to roleplay to go over questions and potential answers totally legal you can do that yes sharing concerns this is really important when you if you have some concerns in your things that you are afraid they're going to pop out instead of just being completely worried and don't and don't say anything hoping that the other attorney doesn't address the question may not be your best bet you may want to discuss with your attorney I have these concerns that I want to share you have the attorney-client privilege as you're speaking to your attorney so you may want to share these things which may be nothing you may be concerned about noting that something that's not even a real issue so share those with your attorney figure out what it is it's concerning you and address that in advance review the documents if they're asking you to bring documents and the deposition notice you can say to your attorney we have we need these documents here's my emails here's my text messages here's the letters they wanted you know here's my bank account whatever they're asking for and you can discuss those documents with your attorney you can review those documents and see what kind of things there are and what kind of issues are may be so you get a role-play all of this in advance before you go and actually do your deposition okay so these four things should give you some peace of mind these are my first four tips is just understanding what's going on because that understanding understanding this process the context in which we're dealing here should bring you some confidence because you understand what's going on you're not you're not ignorant to the whole thing now let's get down to the nuts and bolts okay this is actually taking the deposition which is question answer the attorney asks a question the deponent gives an answer ask a question give an answer ask a question give an answer that's kind of the flow of it however that doesn't go that easy sometimes it's like when you're at a you're at a party or something you're talking with other people and you start talking somebody cut you off and you just go like oh my god you know and somebody's always cutting each other off so things can get crazy and the same thing can happen in a deposition so we're going to talk about just a few of these things that may be helpful here let's go over to my aqua pen um tip 1 tip 1 here it's actually number 5 on my top 10 number 5 listen carefully to the question listen carefully to the question okay sometimes just like I said at a party someone will start talking you go oh I know if they're going to saying you want to interrupt and you want to throw your statement out there don't do it slow down relax listen you got two ears in one mouth use the two ears and listen to the question what is the attorney asking is he asking for timings date someone you spoke to what was sad listen closely to the question let the attorney finish sit there relax calmly mm-hmm-hmm-hmm you can sound impressed if you want you can do those kinds of things but let them ask the question once they're done asking the question your attorney if you have an attorney representing you has the right to make a legal objection now the objections could take lots of different forms you know objective objection to the form of the question it could be objection irrelevant we know why yes this question is completely irrelevant objection argumentative you're just trying to get this witness aren't you no in a bunch you're just trying to argue for no reason you know calls for speculation calls for a legal conclusion you know vague and ambiguous compound questions so there's a lot of different types of objections you want to always make sure you're giving your attorney a chance to raise the objection if not what ends up happening is everybody starts talking over each other and then the court reporters going crazy going on what do I type down or even what to type down don't be that witness be the witness that sits there listens calmly to the question waits for your attorney to see if there's any objections think about the question and digest it and think about what your answer is going to be so that is a process of being calm now you really have to be calm to do that and the same is true in social settings when you're trying to talk to people you have to listen now they may be long-winded you may be going please get to the point but give them a chance to get the question out because if you chop them off you know trust me you end up going back the attorney wants to go and make sure he gets this full questioning you may have to reread the record from the court reporter it just turns into a mess let attorney finish the questions listen give your attorney a chance to eject if they object they will also tell you go ahead and answer the question in most cases or they will say I advise you not to answer the question now usually the grounds that you're going to find that on is attorney-client privilege if it's something like well what did you talk about with your attorney before you came here today you say your attorney says objection that calls for attorney-client privilege communications I advise you not to answer the question okay I'm not going to answer question okay so that's how the process goes if the attorney says go ahead and answer then you want to go ahead and give a nice short answer that avoids rambling and volunteering information and talking telling stories that have no relevance that open up potential pitfalls okay so listen to the question listen to your attorney let them object if they tell you to answer go ahead and answer with a nice short direct concise succinctly okay that's what you're looking to do all right so listen carefully to the question tip number five don't talk over the lawyer don't talk over your own attorney okay the court reporter has to be making this record and you just got to let the process work itself out it's the best I can tell you tip number six wait for the objections as I said right here let the attorneys fight meaning if the attorneys want to go back I've got some videos posted on my website you can go to depo tips com depo tips com to see some of these links I posit but you can watch where attorneys are fighting each other and the witness should just be sitting there going hmm sit there and enjoy watching two attorneys fight at their job doing what they do they're trying to protect their clients that are try to protect their clients sit there and just enjoy the process if you have if you had a bag of popcorn I guess you could eat some popcorn but just what you gonna let the attorneys do the fighting okay you don't have to get involved in that and that's kind of that okay that's number six on our list seven as I mentioned give your best to full and short answer don't ramble volunteer information tell stories I have this down here as part of this asking for documents if needed now an attorney may say do you remember you said on your in your police report for example that you were driving at 50 miles an hour and you say well I don't remember do you have a copy of the police report that I can review so if you don't know if somebody if the attorney is referring to documents other you know written you know did you write do you remember you put in the contract you wrote this I don't know what are you talking about before you testify you want to make sure that it's going to be truthful and 100 percent accurate if you have to ask for a document to refresh your memory then the attorney on their site should have that for you if they don't and you say well I I don't want to say anything without knowing for sure what I said don't fall into the traps what we call taking the bait from the attorney okay and your attorney if you're represented should help you protect against that so asking for docs that's number seven going up here we got three left if you've hung out this long you're almost there you're almost pro at getting ready for your devil number eight Kate take breaks as needed take breaks as needed this is important so if you have to take a restroom break or you're feeling like you're getting into an area where you're a little uncertain okay we're like you know I'm feeling edgy or something's just coming over to this guy I just need a break right now or you find yourself kind of losing your concentration losing your focus I just need a break ask for the break the opposing counsel will give you the break okay and then if you need to you can go in the hallway talk to your attorney say hey this you know I wanted to wanted to talk to you about this and he brought up this and should I be talking about this so it gives you an opportunity but take these breaks as you need them okay that's number eight nine be careful with off-the-record statements okay so you may be sitting there and usually when they're taking depositions you go okay madam court reporter we're going to go on the record and so they go okay let me start going everything's on the record well when you're done you say let's go off the record so now you're off the record and the other attorney you met may be a fun guy our galleys I really like this lady she's so nice I'm just going to talk to her about my fishing trip you know and we're just going to talk a little off-the-record well you may end up saying something off the record that when you go back on the record the attorney may not be so nice after all it may say okay we're back on the record do you recall that we were just off the record and you were saying abcdefg I wanted to ask you about that or they just start asking you questions about that particular subject area and then you're going like oh geez I trusted the attorney and I got burned so be careful of the things you say off the record okay that's number nine top tip number 10 we're at the bottom is don't offer to do things after your deposition don't say something like you know I I have some documents in my car I can go get you or you know you know I have these records over at my office that you know I'll mail you those or something you'll see how what I was saying is truthful you don't need to do any of that stuff so if your attorney wants you to do that stuff you can do that but don't offer to do things okay because then it's on the record and then the other attorney may try to use that against you in an emotion to the court or something don't do something unless you have to zip it don't open your big mouth okay so those are my top ten tips now I'm going to give you these are bonus tips if you're still watching I'm going to give you some added little extra bonuses here that's my top ten general tips so we're gonna give you some added bonuses here um bolli when you're dealing with the bully attorney and you will get those the bully blustering blah blah blah blah blah you know being forceful and mean and angry your best answer is to stay home relax go back picture my formula here particularly here listen to the question give time for the objection if answer give your short concise truthful answer and just let the process move on like that sometimes that's as good as you can do okay let's check that box evasive will loose persuasive evasive will loose persuasive say that with me evasive will lose persuasive so the more you are trying to avoid answering questions directly I don't recall I don't know you know this and that I have one video on my depo tips calm where this guy just keeps saying I don't recall I don't recall I don't the attorney would barely finish the question he was going I don't recall I don't recall that's being evasive you know there's basic things you're going to recall so being evasive we'll lose persuasive you'll be less persuasive you may make a bad witness you know that may favor one side or the other hard to say again the truthful seek clarifications this is important so again you want to be truthful you're under oath okay that means anything you say is subject to penalty of perjury you could be held in contempt of court so forth and so on okay so you want to be careful you want to be truthful if the other attorney is asking you a question you know you know I'm asking you this this is this is how I I don't understand what you're saying what what can you please clarify your question can you please repeat the question sometimes an attorney will just be on the cuff they'll be asking a question and they'll just start you know rambling about all the facts that they know and you're just like what's the question you know so don't be afraid to ask excuse me what was the question excuse me can you rephrase the question can you repeat the question I don't understand your question all those are very acceptable answers you always want to make sure that the question you're getting is the question you're answering and that everybody's on the same page if you're not sure don't answer ask for that clarification don't just rush to give an answer because you want to get out of there for example you want this to be an accurate hopefully you don't have to do many of these in your lifetime but you just do it the best you can get the best record down that you can and be done with it okay um don't guess and speculate you know sometimes they'll you'll have a question and it seems like they're just wanting you to you know tell me how many times the the the plane flies over each day and I I couldn't tell you I don't know you know you know so they may ask you to estimate sometimes you can estimate if you have the ability to give a fair estimate that may be something you can do but guessing and speculating really doesn't do much for anybody and can damage you and you don't really even know the answer so why are you giving the answer if you don't really even know it okay again sparring temptation this one comes up a lot and I don't know well I guess I probably do know but you take that position sometimes then the other party just wants to feel like they're fighting you or maybe they work for a company and they're an employee and they come in and they just want to fight and I just want to be combative and and that's all fine you can do that but you know at the end of the day we're going to ask our questions we've going to get the answers your best bet if you want it nice and clean is just to answer the questions asked if you're turning makes objections fine give the answers short and concise and move the deposition on ok so resist the temptation to spar with opposing counsel and they will come up trust me there'll be a point in most depositions where you just get tired angry you're just frustrated you don't want to be dealing with this or they're making false statements and you know you're just going to this attorneys driving me nuts or trying to mislead me or manipulate me so that's five so we come over here what do we have keep the attorney honest sometimes the attorneys going to ask you like leading questions you know when did you stop beating your wife and you're like what excuse me that's um you know or what we call false choice questions you know well you know which one did you do was it go to the store did you go to the movies he said wait a second it was neither one of those I went to the library so clarify look out for those false choice questions clarify those making sure you're getting honest questions and honest answers facts assuming facts that are not there somebody says you know I want you to assume that the facts are going to say well you know what happens when you assume right when you assume anything you make an ass out of you and me so we don't want to assume facts we want to know based on your assumptions if you're if you're going on your assumptions then I guess my answer would be this but I don't want to make those assumptions because I don't know for sure okay so what I would rather say is this this if you have an answer and the attorney tries to cut you off and you say well I'm not done giving my answer may I finish please you need to stand up for yourself in that regard so that you make sure that you're finishing your answers so they're nice and complete not every question is is is designed for a easy yes or no question as most people know you know so you know why were you in friend and did you a fringe my clients copyrights no I I did that's not what I see let me explain okay so ask for that time to explain you want to get your story the essential story on the record okay um questions like is that is that all you know about this and I say well that's all I know based on your questions nonsensical hypose sometimes you'll get somebody say let me ask you a hypothetical you know if the person was going up the mountain and he came down and this was falling down at fifty miles an hour and he did this and you're just like I don't understand what you're saying I don't understand the hypothetical I don't know how it applies to the situation I'm just really confused and it's hard for me to answer the question so something like that unless it's a very simple hypothetical be careful hypotheticals can be tricky okay and false summaries is my last one in other words you know to summarize your deposition you said earlier about two hours ago bla bla bla bla bla you say be careful that sometimes that's just a false summary based on nothing based on what the attorney was hoping they could sort of frame this all as you need to be careful say I don't recall saying that um you know my testimony is this and so make sure that your testimony is always right you cannot be afraid to say take on the attorney but I'm saying to clarify and make sure that your points are being made okay um what do we have here usually a question is good for yes or no again I don't recall to the best of my recollection these are permissible answers to give I don't recall I don't remember do you have a document that can refresh my memory you know those kinds of things are sort of the typical answers that you want to give and then short explanations if you have a answer yes that was the case you know blah blah blah in a short short little answer to to put that into context fine those are the kinds of things you look for um I have here and as I put here let me finish there may be times when the lawyers got what he thinks he needs and he's getting all excited she's getting excited and you say yeah please allow me to finish I mean I need to make sure that I add this for the record let me finish okay because remember that attorney come to three o'clock they're probably getting a little tired too they're probably thinking about let's get out of here you know so make sure that you're controlling that piece of it to the extent you can avoid exaggeration and overstating things um one good example that is I never I never uh you know violate anyone's publicity rights I never do this or I always check my documents before I submit them you know I always you know it's like really because if you if you don't always or you don't if it's never in the movie wrong then somebody comes in with another witness and they were but you and you kind of look a little silly so be careful the words you're choosing are very important avoid exaggeration and overstating things and I already gave you the off the record caution with that folks you have survived attorney steve's top ten ultimate guide deposition tip to help you dominate your deposition okay hope that's been helpful if you've enjoyed the video give me some comments if you didn't like it tell me tell me what'd I miss tell me what you'd like to see yeah don't forget to subscribe click that red V wherever they put it these days click that red V and feel free to share this video on your social media networks okay if you need legal counsel give us a call terney Steve honor and you can find us at attorney Steve calm take care you