Your First Solo Performance
Throughout this series, we have referred to you, the Plaintiff, as the star of the show. Until now, however, most of the speaking has been done by your lawyers.
That's about to change.
At your deposition, you take center stage. Your lawyer will be sitting beside you, but your lawyer cannot answer the questions for you. The Defendant's lawyer asks the questions.
You provide the answers. Under oath.
For the first time in the lawsuit, you are performing the solo.
And all eyes are on you.
A deposition is an opportunity for the lawyers to question a witness under oath before trial. There is no Judge or jury. Typically, there will be lawyers for both sides, the witness, and a court reporter who creates a written transcript of everything that is said.
The Defendant's lawyer will ask you questions about your insurance claim, your damages, the allegations in your Complaint, and potentially many other subjects. Depending upon your case, your deposition may last for the entire day.
It may feel like an extremely long question-and-answer session. But much more is happening.
The obvious purpose of your deposition is for the Defendant's lawyers to learn what you know and what you are going to say. Your answers become sworn testimony that may follow you through the remainder of the lawsuit. But that isn't the only purpose of your deposition. They are evaluating you.
How credible are you? How likeable are you? How well do you know the facts? Do your answers make sense? Are you evasive? Do you exaggerate? Do you become defensive? Can you be rattled? How do you respond when the questions become uncomfortable? And perhaps most importantly:
Remember, your deposition may be your first solo performance. If your lawsuit doesn't settle, it may not be your last.
The Defendant's legal team knows that someday you may be sitting in a courtroom telling your story to a jury. Your deposition gives them an opportunity to see a preview. But they aren't the only people evaluating you. Your own lawyers are watching too.
They may have spent hundreds of hours talking with you, reviewing documents with you, and learning your story. But this may be their first opportunity to watch you being questioned for hours by a lawyer whose job is to challenge you.
How do you respond under pressure? Do you listen? Do you follow instructions? Do you volunteer information that wasn't requested? Do you argue? Do you guess? Do you lose your composure?
And importantly, are you coachable?
If there are weaknesses in the way you testify, your lawyers need to know about them. Better to discover those weaknesses during your first solo performance than in front of a jury.
You may walk into your deposition thinking that your job is to give the answers that are best for your case. It isn't. There are no "right" and "wrong" answers. There are truthful answers and untruthful answers. There are answers you know and answers you don't know. There are things you remember and things you don't.
Your job is not to figure out which answer helps your case the most. Your job is to tell the truth. Even when you believe the truth hurts your case.
As an initial matter, you are testifying under oath. But there is another very practical reason why the truth matters so much. History is filled with examples of people who survived the original wrongdoing only to be brought down by the attempted cover-up. The lie became worse than whatever they were trying to hide. Don't make that mistake in your deposition.
A bad fact may hurt your case. A lie can destroy your credibility. As the star of the show, your credibility may ultimately be one of your most valuable assets in front of the jury. Don't sacrifice it trying to improve an answer.
A bad fact may hurt your case. A lie can destroy your credibility.
The substance of your answers obviously matters. But how you answer the questions matters too. The Defendant's lawyer isn't simply listening to the words coming out of your mouth. The lawyer is watching you deliver them.
Are you calm? Are you thoughtful? Do you listen? Do you answer questions directly? Do you become evasive when the subject becomes uncomfortable? Do you become argumentative when challenged? Do you exaggerate? Do you appear to be trying to outsmart the lawyer? Your own lawyers are watching the same things.
Ultimately, both sides are wondering the same thing: What is this person going to be like in front of a jury? You don't have to become someone else during your deposition. If a subject makes you angry, it's okay to be angry. If something makes you emotional and you feel like crying, cry. If you're nervous, that's okay too.
You can even say that you're nervous. Nobody expects you to be a professional witness. There is a difference, however, between showing genuine emotion and losing your composure.
In particular, try not to become angry with the lawyer asking the questions. The lawyer may challenge you, repeat questions, question your credibility, bring up something embarrassing, or intentionally try to rattle you. Remember, the lawyer is doing a job.
Don't take the bait. Don't argue. Don't become sarcastic. Don't try to prove that you're smarter than the lawyer. Your objective isn't to win each exchange. Listen. Think. Tell the truth. Answer the question. And maintain your composure.
In Peeking Behind the Curtain , we told you to tell your legal team everything, including things that may be embarrassing or that you think could hurt your case.
Your deposition is one of the reasons why.
There should be no surprises.
If there is a potentially embarrassing question the Defendant might ask, you and your lawyer should have already talked about it. The first time you think about how you will respond to "Isn't it true that you've been divorced six times?" should not be while you're sitting across the table from the Defendant's lawyer.
Tell your lawyers about the bad facts as well as the good ones. Tell them about the things you hope the Defendant never discovers. Tell them about the questions you hope nobody ever asks.
Your lawyers cannot prepare you for something they don't know about. And there is an important reason why you should feel comfortable being completely candid with your lawyers.
One of the foundations of the attorney-client relationship is that you need to be able to speak candidly with your lawyer.
And we mean completely candidly. Your lawyer needs to know the bad facts even more than the good ones. Don't hide something from your lawyer because you're embarrassed by it. Don't leave something out because you think it will hurt your lawsuit. Don't try to decide for yourself whether something is important enough to tell your lawyer.
Your lawyer cannot properly advise you, prepare you, or protect you from a problem that your lawyer doesn't know exists.
And there is an important legal protection that allows you to have these candid conversations with your lawyer.
Generally, confidential communications between you and your lawyer for the purpose of obtaining or providing legal advice are protected by what is called the attorney-client privilege.
In plain English, this generally means that the Defendant isn't entitled to know what you privately told your lawyer in seeking legal advice or what legal advice your lawyer gave you.
The privilege exists for a reason. The legal system wants clients to be able to communicate openly and honestly with their lawyers. Your lawyer can't give you good legal advice if your lawyer doesn't know the truth.
So tell your lawyer the truth. All of it. If there is a terrible email that you hope nobody ever sees, tell your lawyer about it. If you made a mistake, tell your lawyer. If something in your
Complaint isn't quite accurate, tell your lawyer. If you remember something differently today than you did six months ago, tell your lawyer. If there is something you desperately hope the Defendant never asks you about, tell your lawyer about it.
Don't confuse attorney-client privilege with a magic eraser. Telling your lawyer about a bad fact doesn't make the underlying fact disappear, and giving an existing document to your lawyer generally doesn't transform that document into something the Defendant can never obtain.
What the privilege generally protects is the confidential communication between you and your lawyer for the purpose of obtaining or providing legal advice. That's an important distinction. The objective isn't to hide evidence. The objective is to make certain your lawyer knows about it before the Defendant does.
There is another important word in the definition of attorney-client privilege:
You need to protect the confidentiality of your communications with your lawyer. Be careful about forwarding your lawyer's emails to other people. Be careful about copying friends, relatives, contractors, public adjusters, or other third parties on communications with your legal team. Be careful about discussing the substance of your lawyer's advice with people who aren't part of the attorney-client relationship.
Adding unnecessary people to a conversation or sharing confidential legal advice outside the protected relationship can create questions about whether the communication remains privileged.
When in doubt, ask your lawyer before sharing it. This is also one of the reasons we emphasized the privacy settings when we suggested using an AI agent to help manage your lawsuit.
You may want to use your AI agent to help you understand documents, organize information, review Discovery, prepare questions for your lawyers, and serve as a second set of eyes.
But you don't want confidential communications with your lawyers unnecessarily becoming part of some public or shared AI database. That is why we told you to adjust the settings so that what you enter into your AI project remains private and is not used to train a broader AI system.
The technology is relatively new, and the law surrounding AI and attorney-client privilege continues to develop. Don't assume that communicating something to an AI agent gives that communication the same legal protection as communicating privately with your lawyer.
Use AI as a tool. Use your lawyer as your lawyer. And if you are unsure whether particular attorney-client communications or other sensitive materials should be uploaded to your AI agent, ask your lawyer.
There is another protection you may hear your lawyers discuss called the attorney work- product doctrine.
Attorney-client privilege and attorney work product are related concepts, but they are not the same thing. Attorney-client privilege generally protects certain confidential communications between the lawyer and client. Attorney work product generally protects certain materials prepared by lawyers, or others working with them, in connection with the lawsuit.
Your lawyer's notes may be work product. Legal strategies may be work product.
An outline of questions your lawyer plans to ask a witness may be work product. The lawyer's thoughts about the strengths and weaknesses of your lawsuit may be work product. Materials prepared to help your lawyer get ready for a deposition or trial may also qualify for protection.
Why does this matter to you? Because as you become a more active and a better client, your lawyers may share strategy, impressions, notes, drafts, or other materials with you.
Treat those materials as confidential. Don't forward them to anybody else. Don't post them. Don't casually share them with other people. And don't assume that because something came from your lawyer, you are free to distribute it without consequences.
If you aren't sure whether something should be shared, ask your lawyer first. The same principle applies to AI. Before uploading materials containing your lawyer's legal advice, strategy, mental impressions, or other potentially privileged or protected material, make certain you understand the privacy implications and discuss any uncertainty with your legal team.
You don't need to become an expert on attorney-client privilege or the work-product doctrine. That's your lawyer's job.
Your job is much simpler:
These protections become particularly important as you prepare to take Center Stage.
The Defendant's lawyer may ask whether you prepared for your deposition. Did you review documents? Did you review your Complaint? Did you look at photographs? Did you meet with your lawyer? How much time did you spend preparing?
Don't be embarrassed about preparing. Of course you prepared. You're about to give sworn testimony in an important lawsuit. It would be strange not to prepare. But there is an important difference between discussing what you did to prepare and disclosing confidential communications with your lawyer, including the legal advice your lawyer gave you or your lawyer's thoughts and strategies.
You don't need to become an expert on where those lines are drawn before your deposition. That's another reason your lawyer is sitting beside you. Listen to the entire question and give your lawyer an opportunity to object before you answer.
Most people have never been deposed before. Sitting across from an adversarial lawyer answering questions under oath for hours is not a normal human experience. There is no reason your first experience doing it should be the actual deposition.
Your lawyer may conduct one or more practice depositions with you. That's a good thing. Practice as much as you need to until the process begins to feel comfortable. But understand what you are practicing.
You are not practicing what to say. You are practicing how to testify.
Practice listening to the entire question. Practice pausing before answering. Practice giving your lawyer time to object. Practice answering only the question that was asked.
Practice saying "I don't know." Practice sitting through uncomfortable silence. Practice being challenged without becoming defensive.
Your lawyer may ask you difficult questions, embarrassing questions, repetitive questions, or questions intentionally designed to irritate you. That's good too.
If you're going to make mistakes, practice is where you want to make them. But don't memorize answers. Don't memorize phrases your lawyer used. Don't try to remember the "right" response to a particular question. There are no right answers other than truthful ones.
This may be your first solo performance, but you don't want to look like you're reading from a script. Practice until you become more comfortable. Don't practice until you become less authentic. Practice the process. Don't memorize the performance.
Your lawyers are your supporting cast. Their job is to help prepare you for your solo performance. If your deposition is approaching and you don't feel ready, tell them.
Maybe you need another practice session. Maybe there are documents you still don't understand. Maybe there are questions you're worried about being asked. Maybe you're still uncomfortable with the process. Don't remain silent because you're embarrassed to admit that you're nervous or don't feel prepared. Ask for more help. Ask to practice again. Your lawyer can't solve a problem your lawyer doesn't know exists.
Being coachable doesn't mean doing whatever your lawyer tells you. It means being willing to practice, listen, learn, and tell your lawyer when you need more help. There is no prize for walking into your deposition before you feel ready. Let your supporting cast do its job. This is a good example of what we mean by being better informed, and ultimately a better client.
Being better informed isn't just about knowing more facts about your lawsuit. It's also about understanding the process and your role in it. At your deposition, your role isn't to be the lawyer. It isn't to prove your case, outsmart the Defendant's lawyer, or have an answer to every question. Your role is to prepare, listen carefully, tell the truth, answer only what you actually know, and maintain your composure. Your lawyers can handle the legal arguments. They can't testify for you. The better you understand your role, the better prepared you are to perform it.
One of the easiest mistakes to make during a deposition is answering a question that wasn't actually asked.
Listen carefully and let the lawyer finish the entire question before you begin answering. There are several reasons for this. You may think you know where the question is going and be wrong. Your lawyer may want to object, so give your lawyer an opportunity to do so. And most importantly, you need to understand the precise question before deciding how to answer it.
Then answer that question.
Suppose I ask:
"Do you know what time it is?"
What is the appropriate answer to that question?
It isn't:
"It's 3:00."
And it certainly isn't:
"It's 3:00 on the West Coast, 6:00 on the East Coast, and 2:00 in the U.K."
The question wasn't, "What time is it?"
The question was, "Do you know what time it is?"
The appropriate answer to that question is:
"Yes."
Or:
"No."
That's it.
Listen to the precise question. Answer the precise question.
Then stop talking.
Don't feel that you need to answer immediately.
Pause. Think. Then answer.
Your deposition is not a race. You're probably going to be there for hours anyway. Take your time. If you don't understand a question, ask the lawyer to repeat it. If you still don't understand, ask the lawyer to rephrase it. Don't guess what the lawyer means.
If you understand the question but need some time to think about your answer, take that time too. You can ask the lawyer to repeat the question, which gives you another opportunity to listen carefully and think.
The same rule applies when the Defendant's lawyer hands you something to read. Take your time and read it. Don't skim a three-page document because everyone is sitting there waiting for you. If you need to read the entire document to understand it, read the entire document. If the
lawyer begins asking questions before you have finished, say:
"I haven't finished reading it yet. I need a little more time."
There is no reason to feel rushed. Once you have finished reading, the lawyer will probably ask you questions about what you just read. But reading something doesn't necessarily mean that you understand it, remember it, or know the answer to every question about it.
If you don't know, say:
"I don't know."
If you're not sure, say:
"I'm not sure."
The lawyer may respond:
"What do you mean you don't know? You just read it."
Don't let that pressure you into pretending that you understand something you don't. If the truthful answer is:
"I read it, but I'm not sure what it means."
say exactly that.
Being handed a document doesn't suddenly require you to become an expert on it. Read it carefully, take the time you need, and answer only what you actually know or understand. There is no prize for being the fastest person in the room. And if you need a break, ask for one. You may need to use the restroom. You may be tired. You may be getting emotional. You may simply need a few minutes to collect your thoughts.
Take the breaks you need, subject to your lawyer's guidance about when a break can appropriately be taken. Asking for a break doesn't mean you're losing. It means you're human.
People are uncomfortable with silence. Lawyers know that.
You answer a question and the lawyer looks at you. Nobody says anything. You may feel an urge to fill the silence by continuing to talk.
Don't. You answered the question. You're done. Let the lawyer ask the next one.
Here is perhaps the most important advice I give people heading into a deposition:
If you don't know, say you don't know. Don't guess.
If you once knew but genuinely don't remember, say: "I don't recall."
Those are perfectly acceptable answers when they are truthful.
The lawyer questioning you may not like your answer. They may ask the question again. They may ask it a different way. They may act surprised that you don't know. They may even try to make you feel stupid.
Imagine this exchange:
"A few hours ago, you testified that you're a college graduate. Is that correct?"
"Yes."
"And now you're telling me that you don't know what your dwelling coverage limit was?"
If you don't know, don't be embarrassed. Don't let the lawyer shame you into guessing.
Your answer is still:
"I don't know."
There is no shame in not knowing the answer to a question. There can be enormous consequences to guessing at one. A guess can become sworn testimony. That testimony becomes part of your deposition transcript. And that transcript may follow you all the way to trial.
You are going to answer hundreds of questions during your deposition. You may realize later that one of your answers was wrong or incomplete. Or a later question may jog your memory about something you were asked earlier.
Don't be afraid to correct yourself. Suppose you return from lunch and realize that you now remember something you couldn't remember that morning. Tell your lawyer and, when appropriate, say:
"I've been thinking about a question you asked me before lunch. I remembered something else, and I'd like to add to my answer."
Or:
"I want to correct something I said earlier."
That's not a sign that you're a bad witness. Quite the opposite. Your objective isn't to defend every answer simply because you gave it. Your objective is to make your testimony as truthful and accurate as possible. Don't change an answer because you now think a different answer would help your case. But if you genuinely realize that something you said was incorrect or incomplete, correct it. A credible witness isn't someone who never makes a mistake. It's someone who cares more about getting the answer right than pretending never to have made one.
The court reporter is creating a transcript of your testimony. Your words aren't going to disappear when the deposition ends. They stay with you. If your case eventually goes to trial and your testimony materially changes, the Defendant's lawyer may confront you with what you said during your deposition.
Imagine telling the jury one thing and then hearing:
"Didn't you testify at your deposition that...?"
Maybe there is a perfectly good explanation for the difference. But you don't want to create that problem unnecessarily. After your deposition, carefully review the transcript with the guidance of your legal team. Read every word.
Make sure the transcript accurately reflects what was said. If there are mistakes or something that needs to be addressed, discuss it with your lawyer. Your deposition isn't just a conversation. It creates a record that may follow you all the way to trial.
After several hours and hundreds of questions, you may feel like the goal was simply to make it through your deposition.
It wasn't.
The goal also wasn't to show the Defendant's lawyer how smart you are, how much you know, or that you have an answer to every question. In fact, trying to do those things can make you a worse witness. So what is the best result you can hope for?
When your deposition is over, you want the Defendant's lawyer walking away thinking:
"This person is going to be a problem. They are credible. They are likeable. And a jury is going to have no problem relating to them."
That's a successful deposition.
Remember that the insurance company is constantly evaluating the risk of your lawsuit. You are part of that risk. If its lawyers believe that you are credible and likeable, that matters. If they believe a jury will relate to you, that matters. If they watched you withstand hours of difficult questioning without becoming evasive, argumentative, or losing your composure, that matters too. You don't accomplish any of this by trying to put on a great performance.
You accomplish it by being yourself.
Tell the truth. Listen carefully. Don't exaggerate. Don't guess. Admit when you don't know something. Don't take the bait. Maintain your composure. Your lawyer can prepare you. Your lawyer can practice with you. Your lawyer can sit beside you. Your lawyer can object.
But your lawyer cannot answer the questions for you. For those hours, the stage belongs to you. It's your first solo performance. And the best performance you can give is to leave the Defendant thinking that if there is a repeat performance in front of a jury, you are going to be a problem.
Your deposition has multiple purposes. The Defendant wants to learn what you know and lock down your testimony, but also to evaluate how you may perform in front of a jury.
Your own lawyers are evaluating you too. They are learning how you perform under pressure, where you need additional preparation, and whether you are coachable.
There are no "right" answers. Your job is to give truthful answers. A bad fact may hurt your case. A lie can destroy your credibility.
It isn't only what you say that matters. How you answer matters too. Genuine nervousness and emotion are okay. Losing your composure is not.
There should be no surprises. Tell your lawyers about anything that could potentially embarrass, discredit, surprise, or rattle you before the Defendant gets the opportunity to use it.
Tell your lawyer EVERYTHING. Your lawyer needs to know the bad facts even more than the good ones. Your lawyer cannot prepare for a problem your lawyer doesn't know exists.
Attorney-client privilege generally protects confidential communications between you and your lawyer for purposes of obtaining or providing legal advice. It does not make underlying bad facts or otherwise discoverable documents disappear.
Protect your attorney-client communications. Be careful about forwarding legal advice, copying unnecessary third parties, discussing privileged communications with others, or unnecessarily sharing those communications through AI.
Protect your legal team's work product. Your lawyers' strategies, notes, impressions, preparation materials, and other work product may receive separate legal protection. Treat those materials as confidential and ask before sharing them.
AI is a tool, not your lawyer. The privacy settings we discussed earlier are important, but don't assume that communicating with an AI agent is legally equivalent to communicating privately with your lawyer.
Practice as much as you need to become comfortable, but don't memorize answers. You are practicing how to testify, not what to say.
If you don't feel ready for your deposition, tell your lawyer. Your lawyers are your supporting cast. Let them help you prepare.
Listen to the entire question. Give your lawyer an opportunity to object. Answer the precise question that was asked.
Don't volunteer information that wasn't requested. Answer the question and stop talking.
Take your time. Read documents carefully. Ask for questions to be repeated or rephrased. Ask for a break when you need one. Your deposition is not a race.
“I don't know,” “I don't recall,” and “I don't remember” are all perfectly good answers when they are truthful. Don't let opposing counsel pressure or embarrass you into guessing.
If you later realize that an answer was incorrect or incomplete, correct it. Accuracy is more important than pretending you never make mistakes.
Your deposition creates a record that may follow you through trial. Carefully review the transcript with your legal team.
The best result is not merely surviving the deposition. You want the Defendant's lawyers to leave believing that you are credible, likeable, and likely to connect with a jury—and therefore represent a real risk if the case goes to trial.
