- Do not lie. You are under oath to tell the truth no matter what. Assume the questioner already knows the answer. A forthright answer may be damaging, but is far less damaging than an exposed lie. Answer only with facts and speak clearly. If you have an attorney, trust them to protect your rights during the deposition.
- Do not testify about a document without reading it first. If the examiner does not show it to you, refuse to answer any questions about it until he or she does show you. If you are asked to identify a document, be satisfied to its authenticity before replying.
- Do not attempt to expand or explain the answer. Answer only what is asked and within your personal knowledge. If there is a silence after your answer and the examiner looks as if he is expecting more, remain silent. Do not fill the void with more words. Do not speak until another question is asked.
- Do not offer opinions about people. Do not quote conversations if they are paraphrased. Avoid any attempts at levity or ethnic derogatory statements. And, there is no “off the record.” Additional commenting can lose the case by disclosing privileged information.
- Do not think under any circumstances that the examiner is your friend. His job is to discredit any testimony unfavorable to his client. He may try to set you up by restating testimony in a negative light and overstate any facts that are not entirely true. Do not be afraid to say “I did not say that.”
- Do not answer any ambiguous or compound questions or any you do not understand or a question with two possible answers. Politely state you do not understand the question, and ask the questioner to rephrase until the question is clear. But do not help him or her phrase the question.
- Do not answer questions with unclear or misleading statements or those containing half truths or misstatements. The examiner may try to lead you to agree to a misleading or untrue statement or agree to things you did not say. Do not be afraid to say “I did not say that.”
- Do not go beyond your true recollection. Do not guess. If you cannot recall a fact, say “I don’t remember.” If you need to refer to a document, say so but do not offer to produce it. Do not suggest the existence of documents the examiner did not know existed.
- Do not answer any question too quickly. Pause and analyze each question, repeating it in your mind and formulating an honest answer before speaking. This will set the tempo of the deposition and should hold off examiner pressure. If the examiner complains on the record that you are taking too long, reply that you want to be sure your answer is accurate. The written transcript will not reflect how long you took. Remain businesslike even if the examiner makes you angry.
You have filed your civil RICO case on behalf of the plaintiff and have made it past the Rule 12(b) motions and are in discovery. What should be the focus of your questions in depositions of relevant persons and parties?
- First, you would want to ask questions which would prove the existence of a RICO “enterprise.” RICO’s definition of enterprise broadly encompasses many types of organizations, ranging from hierarchal groups to loosely associated groups of individuals and corporations who act with a common purpose and function as a continuing unit. The typical proof of an enterprise would come from an examination of what the group does, which would be the focus of your questions. Also, you would want to make sure that the RICO enterprise is “distinct” from the RICO defendant, that is, they are not the same. A legal entity by definition is a RICO enterprise but you would want to be sure the RICO defendant is not this same legal entity. Proof of such an entity is usually straightforward based on documents.
- Second, you would want to ask questions to prove there is “racketeering activity.” Racketeering activity includes specifically enumerated federal crimes and certain state offenses. The federal offenses alleged in a civil RICO typically involve mail and mail and wire fraud. You would need to ask questions which would prove all of the elements of mail fraud and wire fraud. State offenses include bribery offenses, which commonly serve as predicate crimes for racketeering indictments against state and local officials for corruption.
- Third, you would need to solicit information as whether there is a “pattern of racketeering activity.” To prove PORA, the plaintiff must show that the activity is both “related” and “continuous.” Generally, the “relationship” prong is more easily proven, while the “continuity” prong may be proven in several ways, either by length of time of the predicates or whether the predicates pose a “threat of continuing activity.”
There are many other issues involved in a complex civil RICO case, such as proving monetary injury proximately and directly caused by the “racketeering activity.” Civil RICO cases are difficult to litigate through trial and generally difficult to get favorable rulings. However, the many advantages of a civil RICO case, such as broad venue, evidentiary advantages, potential treble damages and civil RICO litigation attorneys’ fees, provide support for bringing your fraud action in federal court.