Legal Strategy

September 20, 2024

Two Fundamental Deposition Tips Every Deponent Needs To Know

Keeping in mind the two principles discussed below should be helpful to your deposition testimony on the most fundamental level, no matter who you are and no matter what type of case you are involved in:

1.Do Not Overthink Each Question You Are Asked At Your Deposition. This especially applies to the most educated and professionally accomplished deponents, who naturally read between the lines and look for deeper meaning in just about anything they hear. Contrary to what courtroom dramas make us believe, most questions you will be asked at a typical deposition are straightforward and are not meant to somehow trick you. There is no reason for you to overanalyze each question especially if you are trying to be honest and truthful and you have nothing to hide. When you look like you are responding to deposition questions in a way that will best serve your side of the case, rather than simply telling the truth, the other side will likely notice that and will try to take advantage of it in a number of potentially creative ways, including simply making you look less credible and less believable. Also, if you end up testifying incorrectly about anything during your deposition, you will still have the opportunity to go back and correct your testimony later in the proceedings or even after that deposition concluded. Hopefully, your attorney is carefully listening to your testimony and he will be able to address any issues with your testimony during breaks and before your deposition is over.

2. Answer The Questions Asked And Then Stop Talking and Wait For Next Question. This sounds so easy, and yet few people are able to follow this simple recommendation. All of us are used to speaking and elaborating on whatever we want to make a point. Also, saying more makes us less nervous if we are under any type of pressure when speaking. Your deposition testimony should be the opposite. You should be only answering each question asked and nothing more until you hear the next question. For instance, if you are asked if you have been sued in the past 10 years for any similar issue, the answer should be “yes” or “no”; not “no, but I have been sued 15 years ago.” No one asked you about what happened 15 years ago, so there is no reason to elaborate on this. Your deposition is not the time to try to prove your case or convince the deposing attorney of anything. Your only goal during your deposition is to answer the questions asked as best and as truthfully as you can and do nothing more.

February 4, 2024

How Your Overconfidence Can Hurt Your Case

by Arkady Itkin

It’s important to recognize the reality that just about any case can be looked at from different angles, and the opposing party in your case probably feels just as strongly about them being right as you are. Too many people, who are involved in litigation, are convinced that they are 100% right, the truth is on their side, and that the opposite party has zero chance of winning because their position is devoid of merit. When they start working with an attorney, they exaggerate the facts that support their case and understate or neglect to mention the unfavorable aspects of their situation altogether. All too often this type of underestimating of the other side and their potential arguments backfires and leads to unpleasant surprises at different stages of litigating a case.

Instead, one of the best ways to approach any case is by putting yourself in the other side’s shoes and coming up with the best arguments you believe they can make. Just pretend that you were hired to be the other side’s lawyer and you are supposed to come up with the best defense for their position in your case. Then work on formulating the best ways you could refute or at least address the arguments. The better prepared you are for the riskiest facts and the most difficult questions in your case, the less likely the other side is to be able to surprise you and undermine your side of the story.

This is also why you should share with your attorney all the information about all the potential issues you see yourself in your case however insignificant you think they are. Let your attorney decide which facts matter more or less. The more informed your attorney is about all the strengths and actual or perceived weaknesses of your case, the better equipped he will be to present your case as effectively as possible. This type of openness and objectivity will also make you appear as a more honest and thus a most trustworthy client.

January 28, 2024

Is It Always Better To Have A Tough Lawyer?

by Arkady Itkin

About 10 years ago a client was unhappy when he saw me shaking the opposing attorney’s hand in court right before the hearing. The client went as far as to suspect me of colluding with the other side due to being “too friendly”. I suppose he saw too many lawyer movies which make it look like being disrespectful or downright rude is the way to go, when nothing could be further from the truth in reality. I wanted to tell him that there are very few situations where being mean toward opposing counsel is a good idea, I couldn’t think of a single such situation.

Going back to the question of whether it’s always better to have a tough lawyer – this depends on what being tough means and it also depends on your case. If being tough means being thorough and putting a lot of effort into positioning your case for trial or the best settlement outcome, while also being honest with you about the potential challenges in your case, then it certainly cannot hurt. If being tough means not being afraid to take a calculated risk of going to trial and not settling under the right circumstances, then it is great to have this type of lawyer on your side, although not always necessary. However, if being tough means being stubborn or being a bully for the sake of being a bully, fighting a losing battle just to fight while disregarding unfavorable evidence, then this type of attitude is likely to hurt the outcome of your case more than be of benefit in any way.

Above all, who said that your lawyer can’t be nice and respectful and at the same time be knowledgeable, thorough, and firm when needed? These qualities aren’t mutually exclusive but in fact, usually complement each other. Being represented by an asshole isn’t nearly as exciting as some of the legal shows make it look, and you certainly don’t need your lawyer to be one in order to achieve the best results for you in your case.

April 21, 2022

The Risks of Doing Your Own Legal Research v Seeking Attorney’s Help

by Arkady Itkin

Despite the wide availability of legal information online that allows you to research just about any legal issue on your own, you should treat any such information you find on the internet with a grain of salt, and this is for two key reasons:

(a) Your own research will reveal what you theoretically can do, but this doesn’t mean that this is what you actually should do, i.e. this doesn’t mean that practically taking the step you can take is in your best interest. For instance, let’s say you feel harassed at workplace and you learn online that you have the right to file a harrasment complaint with your HR. But does this mean that you should do it? And if so, when? More importantly, can you afford the risk of being retaliated against and possibly losing that job? You are not going to find answers to these questions online, because none of the resources that are out there on the interent can take your own unique circumstances into consideration.

Here is another, even more obvious example – you were rearended very, very lightly on the road, where the driver at fault basically lift a small scratch on your already less than perfect bumper. Legally, you can bring claim against that driver for negligence, but is this worth trouble, given the potential of receiving such modest compensation? Again, your legal research will likely not provide you with what you should do in your specific situation.