Deposition Boot Camp: The Dos and the Don`ts

Presented by
Experience:
Donato, Minx, Brown & Pool, P.C.
(2007 – present)
Education:
Finance (B.B.A.) – Stephen F. Austin State University
Juris Doctorate – South Texas College of Law
Admissions:
State Bar of Texas, 2009
United States District Court Southern District of Texas
United States District Court Eastern District of Texas
United States Fifth Circuit Court of Appeals
Experience:
Successfully handled numerous trials as Plaintiff and Defendant
Prevailed on numerous motions for summary judgment regarding liability issues
Prevailed on numerous declaratory judgment actions concerning coverage issues
Conducted countless depositions, hearings and mediations

Bachelor of Science –Economics Texas A&M
University

Juris Doctorate-Louisiana State University

Practice areas include subrogation recovery,
insurance defense and coverage opinions for
past 20 years

Licensed in all state and federal district courts in
Texas and Louisiana

Admitted to practice before United States Court of
Appeals for the 5th Circuit

AV Preeminent Peer Review Rated for legal
competence and ethics
 Deposition
“rules of the road”
 Topics/Issues
to look out for and
know before your deposition
 Simulated
 Question
deposition questions
and Answer session

The formal questioning of a witness by an
attorney

The testimony is under oath, transcribed and
may be used as evidence in the proceeding

It may seem informal as no judge will be
present

Rules of evidence are not enforced as they
would be at trial

Allows for great latitude in questioning a
witness

Discover the facts of the case

Obtain evidence to prove causes of action

Educate themselves

Preserve evidence in the form of testimony
for trial

What did you discuss to prepare?
› The “deposition process”
› Attorney/Client privilege

Typically, the deposition will be edited to small,
relevant clips of testimony

Each side will submit what they believe to be
relevant testimony to prove their case

Each side may then offer counter-designations
to the other’s offers of testimony

Each side can request rulings on objections to
the proffered testimony

Combined offers will normally be run together in
an edited video

Attorney taking the deposition will issue a
notice

Deposition is either compelled by court
order or scheduled by agreement

A subpoena Duces Tecum may
accompany the notice

Deposition may be for a named
individual or a corporate representative

Depositions supporting US proceedings may be
voluntarily undertaken in England & Wales

Depositions supporting US proceedings may be
compelled by subpoena by Order of the High
Court in London

The United Kingdom is a party to the 1970 Hague
Convention on Taking of Evidence Abroad

Your employer is likely to be sanctioned if you
don’t cooperate in giving a deposition

No point in refusing to appear for deposition

Ask for the notice and document request

Is the deposition for an individual or a Corporate
Representative?

If for a Corporate Representative, review and
understand the topics to be covered

More than one person may need to be deposed for a
Corporate Representative deposition

The Corporate Representative will speak on behalf of
the company

Make sure you select the proper person or persons to
testify about the topics

Gather and understand the documents

Review your file and know it better than
anyone else

Know the reasoning behind the decisions
you made

Know the reasoning for decisions/actions of
other claims professionals involved

Recognize your mistakes

State versus Federal Objections

Alarm Bells

Context clues

“Coaching” the witness

When instructed not to answer:
› Based on the advice of my counsel I am not
answering this question at this time.
 Better than simply refusing to answer
 Better than saying you will never answer a question.

Listen to and understand the question being asked.

Let the examiner finish the question before answering.

Answer the question that was asked. Don’t answer questions
that were not asked.

The opposing attorney is not your friend.

Do not bring any documents with you unless they are
required.

Do not have specifically prepared answers to specific
questions. Use the Anchor Point method.
›
Have 4 – 8 anchor points based on the complexity of the case.

Don’t try to “win” the case in deposition.

The goal is not to lose the case in your
deposition.

The deposition is not the time for YOU to tell
your story.

We will tell our story at trial.

Keep your calm… even if the lawyers don’t!

Answer the question directly and then
stop. Do not continue to supply
information just because the examiner is
staring at you like they are expecting
more.

Do not explain how you came to your
answer.

The additional information can give you
enough rope to hang yourself.

If a question is multi-faceted or compound
ask them to break the question down for
you.

Ask them to rephrase or repeat the
question.

Take your time and ensure you understand
the question you are answering because if
you do not you can provide a very bad
answer for your case.

Be as specific or as vague as your
memory allows and do not put yourself in
a position contrary to what you truly
recollect.

Do not speculate.

It’s okay if you do not know something.

State if you are paraphrasing or directly
quoting.

However, do not testify about what
others know.

Only testify about what YOU know unless
you heard someone say something that
indicates their knowledge.

If they do not have the document in
deposition, do not tip them off if a
document has the information.
› Do not do their work for them.

Ask to look at and review the document
› Go off the record or ask to meet with your
attorney
› Do not answer any questions about a
document until you have reviewed it and
understand its contents.

The request should be made to your
attorney through a discovery request.

If you agree to provide something and
then forget it will be used against you
later.

Always let your attorney handle this so
they can lodge objections, if necessary.

Let them stay confused

The more they know about your
business/industry the more ammunition
they have to damage you

Particularly in the insurance industry
› Most Plaintiff attorneys have no idea how
your industry works

Do not automatically accept the examiner’s
characterization of time, events or facts.

Do not adopt the examiner’s summary of your
prior testimony.

Instead, rephrase the question into a sentence
of your own using your own words.

Pay attention to introductory clauses
preceding the “guts” of a question.
› These usually contain half-true statements or facts
which you do not know to be true
 Let
the lawyer finish his interruption
and then firmly, but courteously,
state that you were interrupted, had
not finished your answer and then
answer the question.
 Kill
 Do
them with kindness.
not argue or get upset with the
examiner.

Don’t say anything that could be
considered even mildly inappropriate.
This includes jokes, obscene language or
ethnic/racial slurs.

Jokes during a legal proceeding make it
appear to the jury that the Defendant is
callous and has no empathy for a
sympathetic plaintiff.

Most lawyers will find something to score
points on.

It’s ok if this happens. Don’t let it hurt your
confidence or it will create a snowball
effect.

You may make a mistake. If you do, tell
your attorney during a break so it can be
addressed during the deposition.

If you become rattled ask for a break. Try
not to let it show.

There is no such thing as “Off the Record”

Breaks

Bathroom

“Off the Record”

Only speak with your lawyer about the case
or deposition in private
› Attorney/client privilege

If you are hit with a flash of insight or
recollection while testifying, and what
you are remembering has not been
discussed with your counsel, keep it to
yourself if possible and then tell your
counsel during a break.
› This will allow your counsel to advise you on
how to handle disclosure of this information

Exercise your option to “read and sign” your
testimony

The Errata Sheet
› Allows you to make corrections to testimony
› Used to clear up confusion, mistakes or when
you misspoke
› Don’t try to “fix” bad testimony
› Discuss changes with your attorney

If you make material and numerous
changes it will be used against you later
during trial.