The two biggest mistakes officers make in approaching depositions in civil lawsuits are:
- Equating the experience with the familiar process of testifying as a prosecution witness in a criminal case, and
- Deciding to “wing it” instead of taking the time and effort to understand and prepare for the “unfamiliar and decidedly hostile” arcane world of pre-trial testimony as a defendant accused of wrongdoing.
In his latest book, Preparing for Your Civil Deposition: A Guide for the Law Enforcement Professional, veteran trainer and legal consultant George T. Williams offers a practical, point-by-point template for avoiding these pitfalls and prevailing against “litigators who are experts in the business of winning police misconduct cases and separating agencies from their budgets.”
Williams’ trenchant advice, tightly packed into scarcely more than 100 utilitarian but easy-to-read pages, is drawn from his two decades of defending cops as an expert witness, from his scrutiny of hundreds of officers’ real-life depositions, and from input from “the best civil defense attorneys in the business.”
Too often, Williams believes, officers mistakenly focus on the testimony they’ll give at trial in a civil suit and underestimate or ignore the importance of what they say at a pre-trial deposition, which likely is their first chance under oath to relate in detail their version of what happened in the encounter at issue.
“Without exception,” Williams writes, officers who comprehend and master the pivotal deposition environment “tend to do well” facing even the wiliest adversaries–and may even prevent a case from advancing to trial. But those who fail to ready themselves properly may “literally lose what was a winnable case for themselves and their agencies by giving terrible deposition testimony.”
Here are 7 keys to winning deposition warfare, distilled from Williams’ insightful book. The elaboration he gives on these and much more in the text itself will help you meet the challenge of providing an accurate, comprehensive, and persuasive account of your actions when you do the right thing on the street–and are rewarded by being sued.
- Understand your adversary’s motives. By winning a suit in federal court, plaintiffs’ lawyers stand to gain “reasonable attorney fees” that may “range up to six figures,” exceeding even the damages awarded to their clients. This may represent “three to six months of pay for them,” Williams explains.
With that at stake, “the amount of time and the intensity of [their] preparation will be unlike anything you have experienced in your previous criminal testimony…. [They] will typically have a mastery of every detail…and challenge you on every action and decision for its legal and tactical validity…. They are hungry,” and at deposition they are sizing you up as prey.
- Know the plaintiff’s theories. Absorb all the details of the Complaint for Damages that lays out the plaintiff’s version of what happened and the allegations against you. This “fact pattern” will likely differ greatly from your memory and the facts included in your initial report, Williams points out. But this is the story the plaintiff’s attorney intends to sell to a judge and jury, and your deposition will help him lock in his courtroom strategy.
“Pay attention to the themes” of the plaintiff’s case, Williams advises. A primary goal “is to make you appear incompetent and ill-trained.” But if you “know how your attacker will engage you,…it is [easier] to build a defense against that assault.”
- Refresh your “core job knowledge.” No matter how many years you’ve been on the street, you need to thoroughly “review and relearn the basics” of your job before your deposition, Williams says. Be able to articulate with “conversational familiarity” the essence of all policies pertinent to your incident, the key case law that’s relevant, and how your actions comported with them. Document your training and be prepared to describe the workings of enforcement tools you may have used, including the TASER, for example. (Williams lists a dozen technical/tactical questions about CEWs that plaintiff’s lawyers often ask–and that cops being deposed often “flunk.”)
In the eyes of civilians who will ultimately judge you, Williams warns, “failure to confidently articulate [the] fundamental core knowledge of your profession” in words they can understand “will taint their opinion of your actions and decision-making…and may fundamentally affect their verdict.”
- Keep context in the foreground. Every question the plaintiff’s attorney asks you is intended to help him confirm his theory of your alleged misconduct, Williams says. Your job is to “keep the context [of your actions] in the foreground of your answers.” That is, use his questions as opportunities to fully explain “all of the factors you relied upon in making your decisions and responding to the threat or resistance of the suspect.”
Those who will ultimately judge your behavior are required to consider the circumstances in which you were acting. You need to put them “into your shoes at the time you were involved in the event” so they can comprehend the reasonableness of your perceptions and responses. Without that context, Williams says, “they will arrive at someone else’s version of the facts and that will not be good for your case.”
- Beware attorney traps. Mind games by the plaintiff’s attorney to get you rattled, off-balance, emotionally unsettled, or impulsively angry are notorious in depositions. However friendly the lawyer may seem initially, it’s a guise to lull you into complacency. Stay alert, Williams cautions. “He is not your friend.
Williams describes a laundry list of common ploys, including incomplete hypothetical scenarios, vague or confusing questions, misstated quotations, intimidating threats or innuendoes, false sympathy, deliberate rudeness, non-sequential questioning, frequent interruptions or “corrections”–all designed to weaken your testimony to his advantage.
Recognizing red flags will help you keep the integrity of your testimony intact. One countermeasure Williams recommends: frequent breaks, to disrupt your adversary’s momentum and maintain your professional composure.
- Monitor other depositions. As a defendant, you have the right to sit in on any of proceedings of your case. If the depositions of other officers, witnesses, or plaintiffs in the case are scheduled ahead of yours, take advantage of this valuable intelligence opportunity and be there, Williams advises.
“Hearing many of the questions that you will likely be asked is a great advantage,” he writes. “You will be able to identify what subjects you may need to research” more thoroughly, “you’ll be able to mentally rehearse your answers to provide the clearest testimony possible,” and you’ll get an in-action preview of the plaintiff’s attorney’s style, so that any attempted ambush by him when you’re in the hot seat is less likely to catch you off-guard.
- Believe you can win. Prepare, prepare, prepare is Williams’ mantra for winning in the deposition arena. Properly prepping with your attorney before a deposition may itself take 30-50 hours, he says, plus the groundwork you do on your own. But if you put in the “sweat equity” to become an articulate student of the case, “you will almost assuredly limit the time and number of questions you will be subjected to,” Williams predicts, because adversary attorneys quickly move off topics that don’t reveal weaknesses they can capitalize on.
“The truth is,” he writes, “lawsuits have been won in deposition because a squared away, competent, and prepared officer was able to convince opposing counsel that there was no money in the case.”
Although plaintiffs’ attorneys “are often built up in the minds of officers as dreaded, all-powerful creatures,” Williams notes, the truth is that they “are not god-like.” Provided that you acted reasonably toward the plaintiff, that you can clearly articulate your perceptions of the event in question, and that you are prepared to maneuver defensively through the unique world of civil litigation, “[e]ach and every one of them is beatable.”
Among the numerous other building-blocks for success that Williams explores in Preparing for Your Civil Deposition is this recommendation: Make sure your attorney is “up to date on the science of human factors and performance limitations.” That includes understanding how your ability to “perceive, interpret, and react to threats” is affected in “dynamic, time-compressed, highly adrenalized” circumstances.
As a human being inside a uniform, “what you realistically can, and more importantly, cannot do” when under a life threat can be “a major factor in the reasonableness of your actions” and in your ability to remember important details afterward. He cites the Force Science Institute as currently “the best source of information about police-specific human factors.”
George Williams, Director of Training for Cutting Edge Training LLC in Bellingham, WA, can be reached at: gtwilliams@cuttingedgetraining.org. Preparing for Your Civil Deposition: A Guide for the Law Enforcement Professional is available through Amazon.com.
Our thanks to Atty. Jeff Martin, a retired sergeant with San Jose (CA) PD and a graduate of the certification course in Force Science Analysis, for bringing this book to our attention.