Focus

Surviving the Stress of a Legal Deposition

by MARSHA L. CARR

When I became a superintendent in 1999, I anticipated creating change in the classrooms across my county through noble ideas. However, it was not long before I realized my role in the school district’s legal matters would take an unanticipated and unwelcome priority.

The county went into civil litigation during my first year over something that happened on virtually my first day on the job. A second civil lawsuit followed soon after. Before I had even settled into my office, I was subpoenaed to appear in court after court to endure eight-hour-long depositions.


Unfortunately, my administrative preparation did not include how to survive a legal deposition, and honestly, I did not know what was involved in giving a deposition.
My first deposition was led by a local attorney whom I had known from childhood. He was representing a plaintiff seeking redress from the school district. My directive, from the school board’s attorney, was to answer the question with a yes or no and provide as little elaboration as possible beyond that. I did just that. It angered the plaintiff’s attorney so much that, to this day, that attorney remains perturbed over my actions.

My next deposition was not much better: It was eight to 10 hours of unrelented questioning by an attorney who viewed me as Satan’s mistress, judging by the tone and hostile attitude of each grueling inquiry.

My Discoveries
With each new deposition (I lost count of the number), I gained another strategy for surviving this most unpleasant of experiences. I realize my lack of practical knowledge is probably not uncommon among superintendents, so I hope by sharing my deposition experiences, I can ease the discomfort for others by showing how you can stay in control.

A deposition is the legal process for each side, the plaintiff and the defendant, to discover what kind of person you are, what information you have to provide that could help or hinder the case, what kind of witness you will be on the stand, and what weaknesses (or strengths) you may have, depending on the nature of the trial.

•  You control the speed or tempo of the questioning. If you have ever used a teleprompter, you quickly discover you control the words appearing on the screen in front of you. If you read slowly, the words move slowly. If you speed up, the words speed up.

A deposition is no different. You can answer quickly and move rapidly through the questions, or you can slow down the pace and take your time. Most depositions are transcribed but rarely videotaped. Transcriptions do not indicate that you took several minutes to reflect before you answered, so if you want to be cautious, take your time. Think about the question before you respond. You want to be truthful, and sometimes this requires pulling facts and sorting them in your head before speaking.

•  You control breaks during the deposition. This tactic does not mean you can use a break to avoid answering a question, but if you feel pressure from a series of questions and need time to change the tempo, call for a break. This strategy is no different than calling for a timeout in basketball as a way to shift the momentum. Simply ask for a break at a convenient time; most attorneys will be accommodating. They often are ready for a break, too.

•  You control the time of day and the amount of time you want to spend on the deposition. You cannot avoid depositions or use excuses to get out of doing them, but you can indicate your preference for two early-morning, half-day depositions instead of one extended eight-hour session. The longer the duration of testimony without breaks, the more likely you will get tired or uncomfortable, perhaps yielding information advantageous to the attorney conducting the deposition. Most attorneys are polite and courteous, but they do hope you will divulge information your attorney may wish you did not.

If you have medical issues or special needs, these also can be accommodated. Court personnel honor special needs, though these must be verified by a medical professional.

•  Prepare for your deposition. Use notes or materials that are available to you as part of the court documents to refresh your memory. You want to provide an accurate account of what you recollect. You want to be a good witness and, more importantly, an honest witness because there are severe penalties if you are not.

The school board attorney representing you will advise you on the use of documents for review prior to any deposition because a document used could become part of discovery and need to be turned over to the other side. 

•  Be cautious in using absolute terms. Unless the plaintiff attorney is asking your name, using words and phrases such as “absolutely” or “without a shadow of doubt” or “I am positive” in a response to a question can be problematic. Too often you answer a question as you hear it in your head and later realize you misinterpreted what was being asked. It is too late when you are challenged on the stand to defend your stance. You will raise undue scrutiny over every answer that follows.

Realize you are answering based on your interpretation of what is being asked. In a stressful situation, take your time. Tell the truth, but leave yourself room for imprecision by using such phrases as “to the best of my knowledge” or “my recollection is” or “I believe this to be true” or “I would believe that to be correct.” If you do subsequently recall something differently or realize you didn’t understand the question, then you can explain that you believed what you said at the time to be true but now that you accurately understand the question, you want to revisit your response.

Other words and phrases to avoid are “always,” “never,” “are you kidding?” and “I would stake my life on it.”

•  Above all else, try to relax and calmly answer the questions. Everyone gets nervous during depositions, but the horror stories of attorneys bullying and harassing witnesses during depositions often are exaggerated. However, you might face a belligerent attorney. In this case, you can control by example. Remain calm and respond professionally.

Remember these tips are generic, meant to help ease the stress of a deposition based on my experience in depositions conducted under the rules in effect in my jurisdiction at the time. Ground rules for depositions vary widely from state to state, so look to the local attorney representing you to prepare you for whatever the ground rules are in the state where you’re located.

Marsha Carr, a former superintendent, is an assistant professor of leadership at the University of North Carolina in Wilmington. E-mail: carrm@uncw.edu