I work a lot with executives facing deposition in high-stakes commercial litigation, so I know what Bill and Camille Cosby’s legal team is doing right now: everything they can to quash the prospect that Mrs. Cosby will have to be deposed in a civil suit against her husband and, in case that tactic fails, preparing her to face tough, lengthy questioning by the plaintiffs’ lawyers.
Mrs. Cosby was scheduled to be deposed on Jan. 6 in a civil suit filed against her husband by seven women who accuse Mr. Cosby of sexual misconduct and are suing him for defamation. U.S. Magistrate Judge David Hennessy, however, on Jan. 5 granted her motion to stay the deposition pending her appeal to have the deposition quashed altogether.
If she does end up getting deposed, my deposition tips for executives may come in handy. Mrs. Cosby isn’t an executive, but she’s clearly a crucial witness in an important piece of litigation, so these tips apply to her as much as they apply to anyone in the C-suite. You can read all of the posts here, but these are the highlights:
- Answer the question that was asked, not the question you inferred: If you’re asked “Do you know what time it is?” the answer is either “yes” or “no.” It is not “11:15.” Depositions aren’t conversations. They’re question-and-answer sessions in which the answers will be parsed and dissected by extremely capable technicians—with a very distinct agenda.
- Control the tempo: If you’re being deposed, the opposing counsel is trying to put you on edge. Don’t let him. In order to properly answer the question, you have to think about the question, and you can’t do that if you let the opposing counsel rush you. And he wants you to feel rushed, so that you’re not really thinking about each question before you answer it.
- Steer clear of innuendo: It’s tempting to aim disparaging comments at the opposing side during a deposition. That is often easier said than done, though. It is insidiously tempting when the litigation is heated and personal (as it is in the Cosby case), or when the other side is peppering you with questions impugning your credibility. But giving in to temptation here will only lead to regret later. Opposing counsel hopes you do take shots at them and those can be the defining moments used against you.
- Know your role in the overall defense: It’s crucial to know the context in which you’re testifying and how the legal team wants you positioned in relation to the overall defense. Make sure lawyers have explained the theory behind their defense and how you fit into that strategy.
- Nobody can put words in your mouth: People who are being deposed often say the lawyer is “trying to put words in my mouth.” But not even the most skilled ventriloquist can do that. If you remember nothing else, remember this: the witness controls the answer. And nobody can use your testimony against you without using both the question and the answer. What lawyers will often do in a deposition is try to get you to agree to their interpretation of what you’re saying. But that’s a very simple move to combat. Here’s how:
Lawyer: “So, what you’re saying is ABC?”
Witness: “I wouldn’t say that. I would say XYZ.”
- Lose the ego: Executives and other people in power (such as the wife of a legendary TV personality) must remember that, in the eyes of the law (and the judge or jury), they’re no more important than anybody else. Reining in a powerful person’s ego is often one of a lawyer’s most difficult jobs. And opposing counsel know this, and they do everything they can to get under the witness’ skin. Don’t fall for it.
- Get ready for your close-up – with a close-up: A practice session, with a videographer, is crucial. This is a great way to see if witnesses internalized my advice and, almost as important, if they’re comfortable on camera. It’s an unnatural situation, so it’s worth spending the extra time to get acclimated to it.
Remember that deposition testimony typically gets used against you, not for you. So don’t try to win the case in a deposition. Rather, try to avoid making the highlight reel: the big mistake that the other sides uses to make their case.