IMGCAP(1)]Lawsuits are never fun, particularly for CPA defendants who stand to lose money, reputation and time.
And it’s no fun sitting through a deposition and answering questions calculated to elicit information that makes someone look bad, especially if that someone is you, the defendant in a malpractice lawsuit.
Yet the majority of accounting malpractice lawsuits will require a CPA to attend a deposition, according to Rickard Jorgensen, president and chief underwriting officer at Jorgensen & Company, a professional liability and risk management consulting firm.
“While they can be time-consuming and distressing, depositions play a key role in the outcome of your lawsuit,” he advised.
The deposition is one of the most important parts of the lawsuit against you, and yet most CPAs don’t do enough preparation, Jorgensen indicated.
“It is performed to lock in your testimony before trial so that the plaintiff’s attorney can use it to frame their questions for the cross-examination and is rarely for a CPA’s benefit,” he said.
“Although most CPAs hope it will lead to their case being dropped, it usually does not. There is a misguided belief that if the CPA explains things clearly, their intelligent responses will prove to the plaintiff’s attorney that the whole suit is a mistake,” Jorgensen observed. “In reality, the less you say the better.”
“Think of it this way: the deposition is a document that is going to be used against you,” he added. “The less there is, the less harm there can be to you. Try to avoid giving the plaintiff’s attorney ammunition.”
Here are Jorgensen’s specific suggestions for CPAs during a deposition:
1. Do not teach the plaintiff’s attorney the facts. Let their experts do that.
2. Do not argue or be sarcastic with the plaintiff’s attorney. Be professional and courteous, and answer as succinctly as you can. Don’t inject humor—it does not look good in print. Imagine that every word you say is being written in a transcript to be read to the jury—because it is!
3. Don’t point the finger at codefendants—cooperate with them. Even if the codefendants share some responsibility for the claim, it is of the utmost importance that all codefendants cooperate with each other at the time of the deposition.
“You might believe that pointing the finger at one of the other defendants will get you out of the case, leaving only the ‘guilty party,’” explained Jorgensen. “That is a mistake. Turning against each other will do the opposite, ensuring that you stay in the case because your codefendant will now point the finger at you. Thus, you fall into the plaintiff’s attorney’s classic trap: sue everyone in sight and have them fight each other to get money from at least one of you.”
4. Don’t guess at answers. If you don’t remember, simply say, “I don’t know.” Don’t offer what you “could” have been thinking, or even what you “should” have been thinking. Even though it may seem monotonous, you won’t look stupid.
5. Don’t answer any more than the specific question asked. Don’t believe that if you give a lengthy and detailed answer that it will end the questioning. The more information you give the plaintiff’s attorney, the more questions they will think of. And don’t think that anticipating the next question will save time. It will only give them five more questions to ask.
6. Don’t simplify technical language for the plaintiff’s attorney. Use technical language generously. In fact, try to use specific accounting terminology and jargon wherever possible. This forces the opposing attorney to use their accounting knowledge, and some attorneys are smarter and better prepared than others. If the plaintiff’s attorney does not completely understand your answer, it is harder for them to formulate questions to counterattack it.
7. Never answer compound questions. If a question has two or more parts, do not answer it. Your attorney should object to this question. But if that doesn’t happen, you must state that you can’t answer because there are multiple questions being posed in that question. Ask for a clarification so that you can answer one part at a time.
If a question is preceded by a long-winded statement, wait for the end of the statement/question, then ask for clarification as to what the question was. Otherwise, answering that question might imply your agreement with the statement made just prior to it. Don’t get sucked in by this common tactic.
8. Don’t skim over the facts. You may be asked a question about a particular tax issue. If you are asked to give an opinion, be as detailed as possible. Go through each aspect in excruciating detail. Make sure you are familiar with the facts and each technical term.
9. Don’t respond to double negatives. Sometimes a plaintiff’s attorney may inadvertently or purposefully confuse you by asking a question that contains a double negative. You may think you understand the question, but you may answer “no” when you mean “yes.” In listening to a question, the ear often ignores the contraction as a negative.
10. Avoid non-verbal communication. Sometimes depositions are videotaped, which means the CPA must be conscious of how they physically present themselves. Nervous tics, eye rolling, stuttering or large gesticulations can be distracting to a jury if some of the footage is used at the trial.
“The deposition can make or break your case,” cautioned Jorgensen. “Any insecurity you have will come out. Go over your case with your attorney until all of your doubts disappear and you are truly confident. If you present a strong, professional front, the plaintiff’s attorney will realize that you will also make a formidable opponent on the witness stand. You might get lucky and get your lawsuit dropped or dismissed. Even if that doesn’t happen, however, you will at least set yourself up well for your trial.”
