You are in:
Be Prepared!
When something goes wrong at your park, due to a slip and fall, ride malfunction or any other accident, you want to be sure that it is dealt with in the proper way, and justice is done. Yet should it ever reach court, the way an operator prepares to give testimony can often be crucial to the outcome of their case. Here US attorney and Park World columnist Heather M Eichenbaum Esq (pictured) offers some valuable advice. While the information is intended primarily for an American court of law, we feel sure many of Heather’s tips will prove useful to operators worldwide.
“Just a deposition” – There is no such thing! The vast majority of cases never get to trial. Cases are won or lost in discovery – including depositions. Further, if the case does go to trial, you will be tied to your deposition testimony. Treat a deposition as though it were trial!
What is a deposition?
Each time a lawsuit is filed against an amusement venue the attorneys schedule “depositions.”
A deposition is testimony given under oath which is: (A) A way for the opposing side to learn what facts you know; (B) A way to discredit the case for the side you are testifying for or learn facts that are helpful to the opposing side’s case; (C) A way to learn what your side’s case is based on (or what your defences are); (D) A way to commit you to statements under oath for use later at trial if your testimony changes or if it conflicts with another witness’ testimony (impeachment); and (E) A way to preserve testimony for trial in the event you become unavailable (due to illness, death, travel etc).
Preparing to testify
Review all pertinent documents before meeting to prepare with your attorney. You want to be knowledgeable from the start and be ready to point out any things you believe may be issues for the case (whether helpful or harmful) and ask your attorney questions about any document (or any other issues for that matter) that cause you concern. If you have given a deposition in another case on the same subject (ride), review that deposition to refresh your memory about your prior answers to questions you might be asked again.
Do not talk to anyone other than your attorney unless asked to by your attorney. It’s common for a plaintiff’s attorney to ask about conversations you’ve had with others to suggest you are in collusion with one another to ensure your testimony is the same. There is no need to discuss your testimony with anyone other than your attorney – they will make sure you are well prepared. Do not give the opposing side the opportunity to make you look like you are synchronising your testimony with others and thereby wonder if you are being honest.
Discuss the case with your attorney – disclose all facts – whether helpful or harmful! There is nothing worse for your case than failing to tell your attorney absolutely everything, whether helpful or detrimental to your case. You may think the “bad” evidence will never come out. However, a good opposing lawyer may well corner you into disclosing those “bad facts” by their questions. You want to be prepared for that circumstance.
Be prepared to be honest. The most important rule is to be honest – always. Just as you must disclose all facts to your attorney, you must be prepared to testify about facts that are not always helpful, in an honest way. Your attorney will help you prepare your testimony if they know those “bad facts”. There is a way of presenting facts – even harmful ones – in a way that suggests the glass is half full, as opposed to half empty.
Arriving for testimony
Dress professionally and appropriately. If you live your life in jeans or overalls, do not try to wear a suit and tie. You will be uncomfortable and you will look uncomfortable – without anyone knowing why, this discomfort may be interpreted as dishonesty. Wear khaki pants and a button down shirt or sweater. If you are comfortable in a suit, wear one.
Arrival and final preparation. Upon arrival for your deposition, ask your attorney any final questions. In most locales, you will not be allowed to speak to your attorney once your deposition has begun. If you are present for any other witnesses’ depositions, pay attention to their testimony for two reasons: First, to become familiar with the style of questions being asked and the personality of the opposing counsel; and also listen for any testimony that may corroborate or contradict yours. If you hear something that concerns you, speak with your attorney before your deposition begins.
Presenting your testimony
Confidence but not cockiness. Present your testimony as fact. Be humble despite your self-assured presentation. The impression you give to opposing counsel in your deposition will be the impression they assume you will give the jury and this will, therefore, effect his valuation of the case (no juror or Judge likes a pompous witness).
Be honest. Your first obligation as a witness is to be honest. You will be sworn under oath when giving testimony, whether in a deposition or at trial. You must be honest.
Be accurate. Do not exaggerate your facts. For instance, never say “we always keep our maintenance records for three years.” The opposing side will invariably hand you records and point out that some are missing! Keep your statements general as a fact witness. As an expert, be more precise.
Stay calm, speak slowly and clearly. Every witness, no matter how seasoned, has a tendency to speak more quickly and less clearly when testifying. Why? Instinct. Whether you have testified 10 times or 1,000, it’s human nature. You are being examined by someone who wants you to fall apart. The gut reaction, even subconsciously, is to hurry up and get the heck out of there! Don’t! Stay calm.
Concentrate on speaking slowly. Do not assume you will do it unless you make a conscious effort. Practice into a tape recorder. Read a question off an index card, set it down, and answer the question. Play back your answer. Are you speaking faster than normal? Practice. Even if you are not, assume you will speed up when the pressure is on and practice anyway. If you have any semblance of a speech impediment or nervous tick when you are speaking in public, assume it will get worse. Practice.
Answer what you are asked. Do not volunteer information. Your attorney will have prepared you before your testimony and you will know what type of information they are looking to elicit from you in asking each question. If you haven’t discussed it, don’t say it!
Upon examination by opposing counsel, answer exactly what you are asked – no more and no less. If a question can be answered with a yes or no, answer it with a yes or no. Do not offer additional information. Make them ask the follow-up question – they may forget! Or, they may just be following an outline of questions and not notice that you didn’t really tell them what they were looking for. Further, by volunteering information, you may tell them something they didn’t already know and give more ideas for questions.
For example, in a negligent maintenance case, the opposing attorney may never have asked questions about parts of the ride other than that allegedly malfunctioned. If they ask you, as the ride mechanic, “Did you shut down the ride to check the bolts that day before the accident?” and you say, “No. It was already shut down because there was a problem with the crank shaft,” you have just advised them of another problem they were unaware of and will now explore - and exploit. Remember: Just say “yes” or “no” whenever possible!
Do not argue with the opposing attorney. Stick to your position even if they badger you, but do not fall into an argument. Remember, that attorney may be condescending, rude and argumentative, but they are probably just doing their job – trying to rattle you! Regardless of their motives, you will present better if you maintain your composure and do not fall into the trap.
Dealing with the opposing lawyer. First, you cannot hit, curse at them, or otherwise be unprofessional under any circumstances. Remain in control no matter how rude the opposing lawyer is.
Besides staying calm, there are several other things you can do to get through the task of giving testimony. Following are 12 tips:
1) Remember no matter how friendly, casual, or “helpful” the opposing attorney, they are not your friend! Their job is to discredit you. Do not fall for niceties.
2) Never volunteer information. As said before, if a yes or no will answer the question, leave it at that unless it leaves your answer in an unfavourable light. For example, if asked if you have a file with maintenance records, your answer is “No,” as opposed to “No, Mr. Jones has that file.” You will have just guaranteed that Mr Jones is deposed next!
By way of further example, if asked whether you have a file for maintenance records, your answer is “No,” as opposed to “No, but I have a file with records of repairs.” Otherwise, you will have just ensured that you will receive a request for a copy of your repairs file within a week!
3) Do not get impatient and start speaking too quickly to try to quicken the pace of the deposition. If you are getting tired or need a break, you are always entitled to take a break. Just ask.
4) Be polite - do not get into a shouting match or argument with opposing counsel. If you see they are trying to get under your skin, concentrate on listening to the questions and thinking about your answers. Maintain your composure. Do not be sarcastic or glib.
5) Listen to the objections of the attorneys. Some objections will be meaningless to you but others are ”hints” given by your attorney to indicate to you what direction your answer should take. For instance, if your attorney objects and states that a question is “vague,” that is an indication to you that you should ask for clarification of the question.
If your attorney objects to a question, stating “asked and answered” or that it is redundant, you must stop and think about the question – it has been asked and you have already answered it. You want your answers always to be consistent.
If your attorney objects and states that a question is “compound” or otherwise suggests that there is more than one question being asked, ask the opposing attorney to break down the questions or make sure that you answer each of the questions separately. For example, you can answer “yes” to your first question and “no” to your second.
6) Do not fall victim to the opposing attorney’s personality games, such as routines to gain your “friendship” or sympathy. Smiles do not make them your friend. Do not be intimidated by anger, accusations or threats. Do not be fooled by an opposing attorney who pleads ignorance and asks for your help in understanding something – they have prepared for your deposition and are well-versed in the area of your testimony.
7) Don’t ever bring documents to a deposition unless told to do so by your attorney.
8) Do not sit through hours of deposition without a break, if you are too hot or cold, or otherwise are uncomfortable. Ask for a break, ask for temperature adjustments, ask for a drink of water. You have the right. A deposition is not to be an exercise in torture or deprivation.
9) Pause after every question, even if it calls for a simple yes or no answer. Your attorney must have time to object if necessary. Since you do not know when your attorney will feel a question is objectionable, you must wait to answer – at least 3 seconds – to allow the opportunity.
10) Ignore silence. Even though it is uncomfortable, do not fall for this trick. Often an opposing attorney will sit silently, looking at you, at the end of your answer. This silence seems to suggest that you should keep talking or that there should be more to your answer. If your answer is through, be silent.
11) Don’t play games or try to trick the opposing lawyer. Don’t try to avoid questions or delay the deposition by giving rambling answers. A good opposing counsel won’t fall for these tricks and will simply take advantage of the new information you gave them while rambling or repeating their question(s) until you finally answer.
12) A deposition is not over until it’s over. Do not be fooled into letting your guard down because the opposing counsel says that they think they are done but just needs to check their notes. Attorneys will often get you to relax by these words and then attack. Keep your guard up until the attorneys are leaving the room!
Handling the questions
1) Do not allow the opposing attorney to misstate your prior testimony. If they preface a question by stating that you said something previously, think about the question and do not automatically agree. If they misstate your prior testimony, correct them.
2) Do not answer any question that you are not certain you heard and understand fully. You always have the right to ask a lawyer to repeat or explain a question.
3) Listen to the whole question and think carefully about it and your answer before replying. There is no “clock” on the deposition transcript – you have all the time in the world.
4) If you do not know the answer to a question based on your own personal knowledge, do not guess. For instance, you may believe that maintenance was done on a ride based on what you were told by another employee, but when asked about maintenance on that ride, your answer is that you do not know.
If asked a question for which you can provide a reasonable estimate (such as a time or distance), you may do so – just make sure to qualify your answer by stating that it is an estimate or approximation.
Do not let yourself be badgered into guessing about an answer. If the opposing attorney follows up a “don’t know” answer with “Well, can you estimate?” but you still cannot, simply repeat that you do not know.
5) If you do not remember, you do not remember. Do not make assumptions, even based on your habit or usual practice. You may always tell a co-worker or employee to perform certain routine maintenance every Friday. If asked whether you told that co-worker to perform that maintenance on a particular date, do not say “yes” unless you actually remember the conversation on that date. Remember – do not assume.
6) Listen carefully for topic changes. For instance, changes in dates can make two otherwise identical questions very different, and can require different answers. Do not assume the opposing attorney is “staying on topic.” They may jump around to confuse you.
7) Do not use slang terms, including “Uh-uh, Nah” and the like. These terms are unprofessional and can be easily misheard or misinterpreted by a court reporter.
8) Avoid hand gestures without also describing, with words, what you are indicating. A court reporter is not allowed to interpret non-verbal responses.
9) Correct any wrong answers previously given. You always have the right to correct yourself during the deposition – even hours after the wrong answer was given.
10) If you are asked about a document at a deposition, read it thoroughly, slowly and carefully. If you are not given the entire document, ask for it. You do not need to be limited to only those portions of a document that the opposing attorney wants to show you. If you are not familiar with the document, say so.
If the opposing attorney suggests that the document is a certain thing or states a certain fact, always check the document to verify that before agreeing – do not assume the attorney is correct. They may be trying to trick you or may simply be mistaken.
11) Beware of questions that are really statements. A question such as “Of course, you are aware that this ride has been involved in other accidents,” is a statement; not a question. If the statement is inaccurate, say so.
12) Do not let the opposing counsel play on your ego. A question such as, “Well, as an expert in this field, you must know that welds often crack under these circumstances, don’t you?” The question suggests that you are not really an expert if you do not agree. Do not fall for this game. Think carefully and answer the question without acknowledging the preface.
13) Do not be intimidated or concerned if asked whether you spoke to your attorney before your deposition. Of course you did! Every witness does. Simply answer truthfully, “yes.” Do not, however, elaborate at all. The opposing attorney is not allowed to ask about the substance of your preparation.
14) As an expert witness, don’t worry if you are asked “how much are you being paid for your testimony here today?” Your answer must be carefully stated, however. You are not being paid for any particular testimony. You are being compensated for your time. Make that clear.
15) Watch out for vague, open-ended, or undefined questions such as “was it long?” Long is relative. Answer specifically with a length such as, “It was about 3 feet long” Similarly, “Did that happen often?” must be qualified by your answer, such as, “It happened about once per month.”
16) Listen carefully to questions that begin or end with “if you remember.” Sometimes an opposing lawyer does not want you to remember and hopes you will respond that you do not if the question is phrased in this way. As with all questions, don’t be swayed by terminology used.
17) Think carefully before answering any ‘double-negative’ question. Questions such as, “You’re not saying that the accident didn’t happen, are you?” are confusing. If you are at all confused about a question, state that you do not understand the question and ask, as you always have the right to do, to have it re-phrased.
18) If a question is prefaced with “to your knowledge...” be careful. If you do not know one way or the other, respond that you do not know. ”Not to my knowledge” suggests that they did not exist.
19) If asked for a definitive conclusion, such as “Have you told me everything about that conversation?” be careful. If you have relayed everything you remember but are at all concerned you may recall something else later, simply state that you have told all you can remember at this time. Do not simply agree.
20) If the opposing counsel asks you to assume facts as true and poses a hypothetical question on the basis of those facts, carefully scrutinise those ‘facts’. If you know them to be false, simply respond that you cannot accept those facts and, therefore, cannot answer the hypothetical question.
21) Be consistent. If asked the same question, slightly differently (or even exactly the same), provide the same answer as before. Chances are, the opposing attorney did not like your answer the first time they asked so is trying to get a different answer by asking again. Don’t fall for it.
Remember, a deposition will go more smoothly if you are prepared and professional. Making a positive and professional first impression may make the difference between giving testimony in “just a deposition” and having to also testify at trial. The opposing lawyers will evaluate their case, in part, by weighing the relative credibility, appearance, and knowledge, of your park’s witnesses versus those of their clients. If you are impressive in a deposition, the opposing lawyers will be more likely to settle or drop lawsuits. Be prepared and professional – you are representing your park and the industry.
Heather Eichenbaum is an attorney with Spector Gadon & Rosen PC, located in Philadelphia, New Jersey and Florida. As well as defending amusement venues, Heather also provides employee training and corporate assistance, such as preparation and review of contracts and leases. Clients include Six Flags, Atlantic Pier Amusements, Gillian’s Wonderland, Holiday World and Reithoffer Shows. Heather can be reached at +1 215-241-8856 or: heichenbaum@lawsgr.com
