Deposition Basics: Telling the Truth

In a previous post (about Responding to a Subpoena), I promised that a future blog entry would cover some basic advice on how to behave at a deposition. Well, the future is now (Where is my hoverboard??), or at least part of it is. It turns out that subject could fill a book, so I’ve decided to break it into a few short(er) posts that readers might actually be able to digest. Consider this the first in a series.

First, a quick review of deposition mechanics. A deposition is a litigation discovery tool that allows attorneys in an active lawsuit to take testimony from someone who has information that may be relevant to the dispute. Attorneys take depositions for a few reasons. Usually it is because they actually want to find out what the person knows about the disputed facts. A deposition is also a dry run for testimony at trial; the attorney wants to know not only what the person will say, but how they are going to say it. Another reason to take a deposition—and the one most relevant to today’s deposition tip—is to get one version of the witness’s testimony on record, so that if it changes later (or other evidence suggests that it should change), the earlier version is preserved for comparison at trial.

Usually, the testimony is preserved by having a court reporter take it down and create a transcript of what was said—every question, answer, objection, interruption, um, and humorous exchange. And keep in mind that all of these answers are considered “testimony” because they are given under oath. At the start of the deposition, the court reporter administers the oath, and the witness swears to tell the truth, the whole truth, and nothing but the truth. If that sounds like the same oath that witnesses take when they testify in court, that’s because it is. And it has precisely the same legal significance.

So here is your first tip on how to behave at a deposition:

Tell the truth.

Seems obvious, doesn’t it? And yet, it is astonishing how often witnesses get themselves into trouble by not following this advice. In fact, witnesses ignore this simple rule so often that I think it’s worthwhile spending the rest of this post identifying some of the reasons that this simple and obvious rule, which also happens to be the law, is one that you should, in fact, obey.

(IMPORTANT STYLE NOTE: I’m using the second person in this post without meaning to suggest that you, gentle reader, would yourself tell a lie under oath. This list is directed, of course, to those liars who may, in the future, happen across my blog and decide to peruse it for insights into why they—not you of course—should not lie at a deposition.)

Let’s start with the most fundamental reason, but perhaps least persuasive.

1. Lying is wrong.

I say “least persuasive” because if you’ve managed to become an adult without understanding why lying is wrong, there’s probably not much I can say that will swing your moral compass at this point. But for the rest of us, it’s worth keeping this bit in mind, even as we look to more practical reasons not to lie under oath.

2.  Lying under oath is against the law.

The sad truth is that, as a practical matter, this reason isn’t all that persuasive either. In theory, if you lie under oath you could be prosecuted for perjury, which is a crime. The reality is that perjury charges for lying at a deposition are pretty rare. Still, one would hope that the possibility of a serious criminal charge would be enough to dissuade a witness from testing those odds.

3.  You are more likely to be caught than you think.

Shifting now from the moral and punitive reasons to the more practical ones. (Look, if doing the right thing and avoiding criminal conduct are not sufficient motivators, maybe a cold analysis of the weaknesses of this strategy will persuade you to avoid it.)

How do I know that you’re more likely to be caught in a lie at at deposition than you realize? Well, for one thing, because people get caught a lot. It’s hard to imagine that all of them—or even any of them—did an accurate cost/benefit analysis of lying at a deposition that was based on an accurate assessment of the odds of being caught. Bottom line, is that most liars do not expect to get caught, and yet many of them are. My guess is that witnesses who lie at their depositions have some experience with lying in other circumstances (and let’s face it—when we’re not under oath, we all tend to tell at least a few fibs every now and then), and are used to getting away with it. If you think that the odds of getting away with lying at your deposition are roughly the same as the odds of getting away with a lie in some other context, then you are wrong. And really, what other way of estimating those odds do most people have?

Here’s another reason that I know people over-estimate the odds of getting away with lying at a deposition: I do this for a living. The person taking your deposition probably does it for a living too. And there are a bunch of tools, skills, and strategies that attorneys have at their disposal to determine if someone is lying. I’m not talking about subtle (or unsubtle) physical indicators, the types of things that might make someone believe that you are lying. I’m talking about the ways in which attorneys go about proving that you are lying.

The easiest way is with documents. Chances are, any story you concoct is at odds with some writing that you either forgot about, didn’t know existed, or couldn’t imagine being created. That’s life in the modern world. Many litigators make a decent living off of this concept, and people foolish enough to test it. Some of our best professional moments occur when have a document in one hand, and a witness directly contradicting it under oath sitting across from us. Cue the Perry Mason Theme (and watch his smile).

4. The truth, however painful, is usually better than getting caught in a lie.

Everyone knows the adage, born of the Watergate scandal, “It’s not the crime, it’s the cover-up.” Translated to the civil litigation context, it still holds true. A good attorney can work with uncomfortable facts, either by casting them in the best available light, or advising the client about ways to avoid having to rely on them (settling, for example). But an attorney’s job gets much, much harder when he has to present a case that has been tainted by competing versions of the truth, so to speak. Getting caught in a lie makes the rest of the story—even the truthful parts—that much harder to tell in a way that is persuasive. As a strategy for improving your hand, lying at a deposition is a bad one, prone to backfiring.

This caveat should be especially persuasive in cases in which you are lying in the hopes of avoiding further scrutiny on a sensitive topic. If you thought the discovery process was invasive and onerous to begin with, just wait ’til you see what it’s like when good evidence of fraud or deceit has been injected into the dispute. The legal system allows attorneys a pretty long leash when it believes they are hunting the truth behind a lie, however innocuous it might have seemed.

The bottom line is that, whatever time, trouble, money, embarrassment, or aggravation that a witness thought he was avoiding by telling something other than the truth, it is usually multiplied several times once the lie is discovered. So even when subjected to a straight risk/reward calculus, the truth almost always wins.