NASHVILLE, Tenn. (May 10, 2001)–In today's litigious society, tire dealers and retreaders are only too vulnerable to becoming the defendant in a lawsuit and summoned to testify at a pre-trial deposition hearing.
And the better the owner or manager of such a business understands and prepares for such testimony, the better his or her chances are of prevailing–if and when the case ultimately goes to trial.
For that reason, the International Tire & Rubber Association offered a seminar on “Preparing to Testify for Depositions and Court Trials” during its recent 44th ITRA World Tire Expo in Nashville.
Once known as the American Retreaders Association, ITRA's conference presentations traditionally have dealt with subjects such as casing inspection and tire repair–operations that can and often do expose a dealership to potential lawsuits.
As far as factual evidence is concerned, “the die is cast” by the time a case typically goes to trial, Expo attendees were told by the session's presenters–Jeffrey J. Casto and Randall J. Moore, attorneys with the Akron-based firm Roetzel & Andress.
During the “discovery process,” of which the deposition hearing is a part, key individuals in a case are “deposed” or questioned under oath by attorneys for both sides seeking to uncover the facts of the case and get everyone's testimony on paper.
By the time the case finally comes to trial, Mr. Casto said, its outcome largely depends on “how the witnesses respond to the questions, how the lawyers spin the facts à and how the jury perceives all of that.”
While such testimony often takes place somewhere other than in a courtroom, witnesses nevertheless are under oath. Any answers they give can be used at the trial by opposition lawyers attempting to discredit their testimony.
Mr. Casto told the gathering there are effective and ineffective witnesses when it comes to testifying at a deposition hearing–often depending on whether or not they were properly prepared beforehand. Witnesses need to spend adequate time with their lawyer preparing for a deposition.
“If a witness is not prepared, bad things can happen at the trial,” Mr. Casto said.
Illustrating this point, both attorneys augmented their talk with a brief video dramatization contrasting the differences between two witnesses.
One is cooperative and takes the necessary time preparing to testify. The other fails to recognize the importance of the case to his company. Being preoccupied with day-to-day job duties, he enters the deposition hearing without having reviewed testimony he'd given earlier in another case–and without understanding his company's defense strategy. As a result, the opposition lawyer confronts the unprepared witness with the inconsistency of his testimony, discrediting him as a witness.
“You may be the only person who actually is going to testify for the company at the trial. Your testimony may determine the fate of your company,” Mr. Casto told dealers in the audience.
“The opposition's sole purpose is to destroy your credibility in front of the jury. They want to put a blemish on your testimony,” or use it to destroy the credibility of other defense witnesses, he pointed out.
“If you fail to maintain your credibility, the plaintiff's lawyer will go before the jury and say, 'Don't trust this witness.'” When this happens, the scales of justice begin to tip to the plaintiff's side, Mr. Moore said.
He told dealers that opposition attorneys “may want to box you out of certain issues or box you into certain issues. Perhaps “they've got a very important fact (to bring up) in the case and don't want you coming in and muddling it up.”
Opposition lawyers also can use deposition testimony to set a trap for a witness at the time of trial, he said. They may have evidence to disprove your testimony at the time of the deposition hearing, “but they'll wait to present it during the trial–so the jury can see you squirm.”
The speakers offered some guidance to dealers being deposed in lawsuits against their company, including:
*Know and understand your lawyer's game plan.
*Always tell the truth. Don't guess. If you don't know the answer or can't recall, say so.
*Answer only questions appropriate to your job responsibilities. If asked a question outside the scope of your experience, say so and decline to answer. Don't let ego cause you to speculate on something about which you have no knowledge.
*Answer truthfully but as briefly as possible. The proper time for refuting the opposition's claims will come at the trial.
*Listen carefully and answer only the question asked. Don't volunteer names or other information or seek to educate the opposition's lawyer.
*Be up front with your lawyer from the start. He or she needs to be made aware of any negative facts immediately–not during the trial.
*Leave issues of causation to the experts.
*Be extremely careful with absolutes. Be on the alert when the opposition lawyer asks: “Have you ever —?” and finally,
*Don't think out loud. The court reporter is taking down your thoughts.