Tuesday, October 23, 2012

Depositions


During your service as a manager or Board member, there is a good chance that you will be called in for a deposition - involving a conflict about collections, compliance violations, or a dispute with a vendor. Preparing for this eventuality is crucial to avoid exposing yourself and the Association to expensive legal proceedings.  Take the following steps to prepare after receiving a summons:
  • Do not appear at the deposition without the presence of legal counsel.Notify the Association’s attorney, and follow his/her advice.  Get with the attorney prior to the deposition to orient yourself.
  • Do not bring any written materials with you unless your legal counsel advises otherwise.  Anything you bring can be used as an exhibit in court.
  • Dress comfortably and take breaks – some depositions last four or more hours.
  • Do not hold discussions with your attorney during breaks – these may not be protected under attorney-client privilege.
  • Legal proceedings can be intimidating, since you are in an unfamiliar environment operating under an arcane set of rules.   Do not allow the opposing counsel to “set your mind at ease” because of this situation. 
  • During the deposition, the opposing counsel may admonish you or ask questions on seemingly unrelated topics (for example – by asking “what medications you are taking”).  Just make sure that you maintain your cool.  Focus on the reason for the deposition. 
  • You don’t score points against the opposing counsel.  Don’t waste time attempting to persuade or charm.
  • Take time in answering questions to avoid contradicting yourself.
  • This is not the venue to “tell your story”.  Keep your responses brief.  Don’t expound or speculate. Answer the question as directly and concisely as possible.
  • Avoid the urge to help end the deposition quickly by volunteering information.  Although you have nothing to hide, providing additional information only creates opportunities for the opposing side. 
  • The best answers are:  “Yes,” “No,” “I don’t know,” “I don’t recall” and “Please rephrase the question.”  If the opposing attorney asks if you know what day of the week it is, the correct response is “Yes,” not “Monday”.
  •  If videotaping is involved, dress and conduct yourself as if it will play on the nightly news.  Your body language and level of confidence will only be exaggerated in the recording.

Again, depositions are not uncommon within this industry. As a board member or a manager, the question more than likely is “When?” you will be called to your first deposition as opposed to “If?” As a result, preparation is absolutely key. If you are unsure about any of the topics touched on above, or have any questions regarding depositions, make sure that you contact your Association’s attorney.

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