by Nick Gromicko, CMI® and Kenton Shepard
A deposition is recorded witness testimony given under oath to be used in court at a later date. Inspectors, like any other professionals whose job subjects them to a certain amount of liability, are occasionally sued and deposed. Deposed witnesses should learn testimony strategies that will make their success in court more likely.
Facts About Depositions:
- They are usually held in a less formal setting than a courtroom, although the testimony provided is just as significant as that given in court. The version of events offered by a witness during a deposition essentially binds the witness to that version.
- They are designed to allow the opposing counsel to gather evidence against the defendant or plaintiff.
- Present at depositions are the defense attorney, the plaintiff's attorney, a court reporter, and the party to be deposed.
- The court reporter will record every spoken word, with the exception of “off the record” conversation, and later transcribe it into writing.
- Depositions can be long and grueling, sometimes lasting in excess of four hours.
- Questions asked during a deposition may not be asked in any apparent order and may seem irrelevant. Nevertheless, it is the responsibility of the witness to answer every question unless their lawyer instructs them otherwise.
Before the Deposition:
Meet with your lawyer to review all relevant documents, especially interrogatory responses. These responses are written answers to questions that were previously provided.
At the Deposition:
- Do not lie. InterNACHI members should know that lying under oath is criminal perjury. If you get caught lying, your entire testimony will be discredited. President Clinton lost his license to practice law and was impeached for lying under oath.
- If you arrive at the deposition before your lawyer, do not speak about the case with anyone, especially the plaintiff's attorney.
- Dress in a professional manner. Although no pictures will be taken, the opposing party’s impression of you is important. If you arrive unkempt, they might think you will not appear credible to a jury, and the plaintiff will be less likely to settle out of court.
- Do not be intimidated by the opposing lawyer. Unlike in a courtroom, where a judge and/or jury is watching, lawyers may try to antagonize you so that you give up additional information. Recognize such behavior as manipulative tactics, to be brushed aside, rather than as personal attacks.
- Similarly, do not be put at ease if the opposing lawyer is strangely pleasant or easygoing. Assume that everything they say and do is intentional and designed to influence your response.
- Speak slowly and deliberately. Remember that everything spoken during a deposition – including stuttering or faltering – is recorded. Slow and deliberate speech will make your testimony appear more professional and credible when it is read later by a judge.
- Do not bring any documents with you unless you were specifically told to do so. You do not want to provide the opposition with any information that they do not already have.
- Always pause after each question before answering. This way, you have time to consider the question, and you will be sure that the question has ended. There is no real time limit for answering a question, so take as much time as you need. Answering questions quickly might also encourage the opposing lawyer to ask more questions than they otherwise would, which will work against you. Also, permitting a pause before answering will allow your attorney the chance to object to the question. It is too late to object after you have begun to answer.
- Do not volunteer information. Answer exactly what is asked and nothing more. Attorneys may also continue to look you in the eyes long after you've completed your answer in hopes that the uncomfortable silence will cause you to continue talking.
by Nick Gromicko, Founder
International Association of Certified Home Inspectors, Inc. (InterNACHI)
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- Always ask for clarification if you do not fully understand the question. Never guess the meaning of a question.
- Do not speculate. If you do not know the answer to a question, say that you do not know the answer.
- Request breaks whenever you feel you need one.
- Do not be afraid of questions that require a “yes” or a “no” answer, even if you think you will sound bad. You do not need to defend yourself at a deposition with a lengthy explanation.
- Do not attempt to memorize answers to anticipated questions. You will not sound natural and there is no way to know in advance what you will be asked.
In summary, inspectors who are deposed should prepare themselves for the unfamiliar environment in which they will provide sworn testimony.