It’s never easy to find yourself in the deponent’s chair. And when you’re the defendant, you can bet that the plaintiff’s attorney has an arsenal of sneaky tricks to gain the upper hand during personal-injury depositions.
While some tricks are more obvious and some are more subtle, the ultimate goal is the same: to make you say and do things that will look bad to the jury. Fortunately, with a little advanced preparation, you can learn to recognize and combat these tricks to better protect yourself and your company from costly, unnecessary exposure. Each of the tips below includes a link to more information.
1. Prepare for the storm.
The plaintiff’s attorney will do everything possible to create a stressful, overwhelming experience while questioning you. Like you’ve been dropped in the middle of a Category 5 Hurricane. However, you can find peace in the eye of the storm by first working to create balance in your own life. Creating life balance means pursuing connection with yourself physically, spiritually, emotionally, and intellectually. Although regular daily routines are the most effective, if it’s already deposition day, you can hack some quick balance with this special morning routine.
2. Know your enemy.
Believe it or not, the plaintiff’s attorney isn’t your real enemy – it’s your own flight-or-fight response. In a deadly situation, your racing heart, sweaty palms, rapid breathing, and rash decision making can help keep you alive. In the deponent’s chair, not so much. At best you’ll end up stuttering and forgetting key names/dates/facts. At worst, you could end up becoming angry, sarcastic, belligerent, threatening, or even violent. All bad looks from the jury’s perspective. Keep your fight-or-flight response in check by preparing an Escape Route with your attorney before the deposition. Even simple things like smiling can go a long way.
3. Go with the flow.
One way the plaintiff’s counsel will try to trigger your fight-or-flight response is through the use of aggression. Aggression tactics can include power moves to diminish your status, intimidation, hostility, and disrespect. He might interrupt you, speak in a harsh tone, or insult you. The trick is to avoid taking the bait. Go with the flow, use your Escape Route, and keep from fighting back.
4. Rise above.
Humiliation is another common fight-or-flight trigger. Because humiliation is an emotion everyone has experienced, most people are vulnerable to it – and the plaintiff’s attorney knows this. He might even know your humiliating experiences or insecurities and use them against you. When that happens, you’re being pulled into the Undercurrent of Humiliation. The key to rising above these Pull Tactics is to know yourself, keep calm, and trust your attorney to defend you when/if the questioning goes too far.
5. Stay strong.
Humiliation doesn’t just come from your buried shame – the plaintiff’s lawyer may also try to induce embarrassment, guilt, or shame by creating the impression that you have violated a professional or moral standard. These Push Tactics are harder to anticipate and thus more difficult to prepare for. Plant your feet and stay strong by remaining calm, using your Escape Route, and answering with confidence.
6. Plan ahead.
The vulnerability we experience when we are confused or disoriented triggers the fight-or-flight reflex, too. Our brains actually perceive mental confusion as a physical threat to our lives. Lawyers use a boatload of tricks to induce confusion in deponents – they might bait you into skipping lunch leading to low blood sugar, or overuse legal rules and procedures to make you feel discombobulated and overwhelmed. The first step to navigating the Fog of Confusion is to plan ahead!
7. Proceed with caution.
Attorneys also love playing mind games to induce confusion. They might use overly long or complicated sentences, ask questions out of sequence, or even pretend to be confused by one of your answers, luring you toward annoyance, anger, and frustration. As in foggy driving conditions, remember to proceed with caution, reduce your speed, and use your Escape Route if needed.
8. Stay alert.
During the deposition, the plaintiff’s attorney will try to get accidental admissions from you by inducing confusion hypnosis. As improbable as it sounds, deponents end up making accidental, untrue admissions all the time. Staying mindful and present can help ensure that you provide only truthful testimony.
9. Stay oriented.
Remember, the attorney is there to get information from you – but not just any information. She needs the “right” information for her case. To do this, however, she needs the jury to see the world from her perspective – a “False Horizon”. To stay oriented, rely on your instruments – the facts, the tools you’ve learned in this series, and your attorney to steer clear of the attorney’s False Horizon techniques.
10. Leave your roles at the door.
No matter what, for the plaintiff to win big, you must become the Villain in their Victim’s story. Don’t get sucked into the Villain- Victim Vortex. Transcend it. By honestly assessing the roles you play in your own life, you can learn to practice true empathy by releasing the assumptions and expectations you’ve set for yourself and others. Now you’re a force of nature to be reckoned with.
Every lawsuit is a different “storm,” and the facts and risk factors will vary from case to case. But in today’s volatile litigation climate, big plaintiff verdicts share some common elements, and depositions provide optimal conditions for turning a storm into a hurricane. In other words, when a defendant performs poorly at a deposition, the plaintiff’s job gets much easier.
Without question, depositions can be uncomfortable, annoying, and sometimes scary experiences. Although it’s easy to feel out-of-control, in reality, you actually have much more control over your circumstances—and perhaps the outcome of the case
—than you think. Our hope is that, by following these guidelines, you will feel empowered to take on any deposition, or for that matter, any other “storm” life might throw at you.
For more information about Murphy Legal or preparing for depositions, please reach out by calling us at (979) 690-0800 or through our website at www.murphylegal.com.