Category: News

Hecht Walker PC invites you to attend the Children’s Rights Benefit Luncheon November 16, 2018 Cherokee Town Club. Reception 11:30 am and Lunch Noon

For over 22 years, Children’s Rights, Inc. a non-profit national organization, has helped to protect hundreds of thousands of children in foster care or state supervision from abuse and neglect across the country. The organization has helped these children received medical and mental healthcare and decreased DFCS and Child Welfare Attorney caseloads in order to guarantee these children receive real oversight and protection. More information about the Children’s Rights Event may be found: https://childrensrights.org/atlanta

Hecht Walker, PC invites you to attend the luncheon on November 16, 2018, at the Cherokee Town Club. Tickets and donations for the event may be purchased here: https://www.eventbee.com/v/9176538542/event?eid=187860342#/tickets.

Additionally, Greg and Cheri Hecht along with Hecht Walker PC will match all contributions for this event, up to $10,000. Thank you! Please come out to support this worthy cause.

Date:

Friday, November 16, 2018

Time:

Reception 11:30am – NOON
Luncheon  NOON – 1:30 PM

Location:

Cherokee Town Club
155 West Paces Ferry Road NW
Atlanta, GA 30305

Ways to Register:

1. Purchase Tickets Online
2. Request and complete the RSVP Form from apezzulli@childrensrights.org

About Children’s Rights:

Protecting Kids. Providing Hope. Every day, children are harmed by America’s broken child welfare, juvenile justice, education, and healthcare systems. Through relentless strategic advocacy and legal action, we hold governments accountable for keeping kids safe and healthy. Children’s Rights has made a lasting impact, protecting hundreds of thousands of vulnerable children and – with your support – we are poised to help millions more.

Aaron Chausmer of Hecht Walker, P.C. Attorneys at Law is set to speak in an upcoming webinar for the Clear Law Institute. The webinar will premiere on January 31, 2018. The webinar will be titled Fiduciary Duty Litigation in Business Disputes: Identifying Causes of Action, Key Defenses, Remedies and Proof. Aaron Chausmer will be giving valuable insights on the topic and providing a wealth of information that anyone in the legal field will not want to miss.

About the Clear Law Institute

The Clear Law Institute offers engaging workplace learning for online continuing education. It focuses on providing practical and engaging continuing education on law, compliance, investigation, accounting, HR, and management topics. The Clear Law Institute, or CLE, is well-known in the legal community for its informative webinars that include over 1,000 previously recorded webinars and approximately 70 live webinars that are added each month. In addition to the webinars, the online workplace offers courses and games for continuing education. The CLE is led by Michael W. Johnson, the former U.S. Department of Justice attorney.

About Aaron Chausmer

Aaron Chausmer, Senior Counsel with Hecht Walker, P.C., has 19 years of experience in commercial and business litigation matters. Prior to becoming part of the Hecht Walker, P.C. team, Aaron Chausmer led his own commercial and business litigation practice. His primary area of focus included commercial and contract disputes, internal business affairs, corporate governance, strategic planning, litigation avoidance, and competition-based matters.

His education includes graduating from Emory University, attending the Boston University School of Law, and earning a Juris Doctor degree. As a part of Hecht Walker, P.C., Aaron Chausmer uses his years of experience and education to offer services in his area of focus as well as generalized advisory services for businesses.

As an active member of the State Bar of Georgia and an accomplished attorney, Aaron Chausmer has a history of imparting his knowledge to others through speaking events. He often speaks to attorneys and business owners and was a featured as a speaker for Strafford Publications, the Perimeter Chambers Small Business Council Educational Series, Lorman Education Services, and SHRM-Atlanta.

About Hecht Walker, P.C. Attorneys at Law

When Aaron Chausmer joined Hecht Walker, P.C. he became part of a team of experienced attorneys that value hard and honest work. Based in Atlanta, Georgia, the business law firm is home to some of the top business attorneys in the state. The attorneys on the Hecht Walker team have a combined century of experience in their specialized practices. The firm has a successful track record and solid reputation for representing their clients. Clients include individuals, small businesses, government bodies, and large corporations. No matter the size of the company or complexity of the case, the attorneys at Hecht Walker, P.C. aggressively and vigorously represent their clients and defend their legal rights.

Recently, the firm showed not just its expertise, but its charitable side. The first Annual Giving Challenge was established in 2017 to provide a matching grant of $10,000 to Children’s Rights, Inc. Children’s Rights protects children from neglect and abuse through legal work and advocacy. The Hecht Walker, P.C. team is proud to support their worthy cause.

The vast majority of businesses are not publicly traded entities.  They are small businesses made up a limited number of “owners.”  And unfortunately, many such ventures end in a “divorce.”  But what happens when this happens? Below, our business lawyers explain this situation.

What Goes Into Resolving a Business Divorce?

There are three critical things to consider: first, the rules; second, what happens; and third, who gets what.

First, the process will likely be determined by the corporate structure and its internal operating document(s).  If the entity is a corporation, the bylaws should address how one shareholder can dispose of their shares – can they be sold to a third-party, do the other shareholders have rights of first refusal, or perhaps the bylaws contain an internal dispute resolution mechanism.  An LLC should have an operating agreement that serves a similar purpose as corporate bylaws.

For example, a common tool in closely held businesses is a “sword/shield” provision.  As when we were kids, one person gets to break the candy bar in two, but the other gets to pick their piece; this incentivizes the first party to be fair.  These provisions however can be complicated and there may be some game theory involved that will allow one side to reap a major advantage.

Second, it is possible that the parties may need to either litigate or arbitrate their dispute.  A business divorce is often about more than the value of the business because one side feels that the other side acted improperly.  Such conduct could diminish the value of the other’s interest while inflating the value of the actor.  There can be a wide-range of potential claims, each with their own elements and issues.  For example, was there a breach of contract or did one party breach a duty to the others?

Third, even when the underlying dispute can be resolved, the one thing that often causes further concern is how to value the parties’ respective interests.  There is no exact way to do this: beauty is often in the eye of the beholder.  And unlike publicly traded companies, there is not a defined market that can set value.   How the interest is valued can vary based on the industry and other distinct factors and hiring an appropriate valuation expert can be critical.

Further, if the interest is a minority interest (less than 50%), the owner may not be able to actively participate in the management or control of the company.  Therefore, a minority interest may be seen as less valuable and subject to a “discount” – a 20% interest in a company worth $10,000,000 may be worth less than its $2,000,000 prorated value.

Although a business “divorce” may seem simple, this is not always the case.

If you have further interest in these topics, please feel free to join Aaron when he is a featured presenter for Lorman’s Continuing Legal Education webinar, Navigating the Complexities of Litigating Jointly Held Business Disputes, scheduled for January 17, 2017, from 1:00 pm to 2:30 pm. Click here, for more information about the presentation.  If you would like to participate in our Friendship discount, you will find a code at the link above, or if you have questions regarding this or our other webinars and presentations, please contact Melanie Yonks at melanie@hmhwlaw.com for more information.

For more information, contact our business attorneys today.

When we speak of someone “owning” money or property, we usually presume that ownership is an all-or-nothing proposition. A wallet or a toothbrush, for example, is either yours or it isn’t. But some kinds of property – homes and cars, for example – may be the basis of a creditor-debtor relationship that legally changes an owner’s rights and control over his or her property. A home mortgage, for example, plainly legally limits what an owner may and may not do with a mortgaged property.

A “fraudulent conveyance” is the legal term for a debtor’s attempt to avoid paying an unsecured debt by transferring property or assets to another person or company when the property or assets are at risk to a creditor. Outside of the law, most of us would simply call this “hiding the money.” Maybe the debtor foresees insolvency and tries to conceal property or assets that a creditor might use to satisfy the debt. Maybe the debtor never intends to pay the debt and transfers property or assets in an effort to become judgment-proof.

To be clear at the start, the law considers a “fraudulent conveyance” or a “fraudulent transfer” to be a civil rather than a criminal matter. Fraudulent conveyance often emerges as an allegation in debtor/creditor matters and in bankruptcy proceedings. Any legal action typically is brought by the creditors or by bankruptcy trustees. In the state of Georgia, when a fraudulent conveyance happens, banks and other lenders may need the legal insights and services of an experienced Atlanta banking attorney.

HOW DID THE UFTA DEFINE FRAUDULENT TRANSFERS?

Under the Uniform Fraudulent Transfer Act (UFTA), a fraudulent transfer may be either “intentional” or “constructive.” An intentional fraudulent transfer is a transfer of property made by a debtor to delay, defraud, or hinder creditors. While intent must be determined on a case-by-case basis under the UFTA, a transfer of all of the debtor’s assets to a newly formed company or to a family member to avoid the reach of creditors or litigation is generally considered evidence of intent.

Federal bankruptcy laws give a trustee the right under state laws to challenge allegedly fraudulent transfers. Many state’s laws are based on the Uniform Fraudulent Transfer Act, which provides that an allegedly fraudulent conveyance may be challenged if there is evidence that it is either actually fraudulent or “constructively” fraudulent. In establishing constructive fraud, the debtor’s intent to defraud or harm creditors is immaterial. Instead, the issue is whether the debtor obtained more-or-less equivalent value in exchange for the transfer.

In 2014, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Voidable Transactions Act (UVTA), which amends and is intended to replace the Uniform Fraudulent Transfer Act (UFTA), which had been the law in 43 states. Several states – including the state of Georgia – have now adopted the UVTA, and several others are considering it. While the UVTA clarifies the law to keep debtors from intentionally dodging legitimate debts, it also provides a creditor with a legal way to reach properties and assets a debtor has transferred to another person in order to keep those properties and assets from being used to pay off a debt.

HOW DOES THE UVTA DIFFER FROM THE UFTA?

The UVTA’s amendments to the UFTA are designed to eliminate the divergent interpretations of the Uniform Fraudulent Transfer Act that have led to different outcomes in different courts for similar claims. The changes also bring the Act into compliance with the Uniform Commercial Code (UCC) and with the U.S. Bankruptcy Code. The UVTA offers some welcome clarity to what has been for far too long an all-too-often-misunderstood area of the law.

Most of the UVTA resembles the UFCA. What are the differences? The most important revision included in the UVTA is the absence of the word “fraudulent.” In the UFTA, “fraudulent” and “voidable” are used inconsistently, so the UVTA replaces “fraudulent” with “voidable.” Another change discourages the use of terms such as “constructive fraud” and “actual fraud,” because “constructive fraud” is confusing, and what is deemed “actual fraud” under the UVTA does not actually require proof of fraudulent intent. However, these revisions in terminology should not have any substantial effect on the statute’s application.

As a result of the 2007 ruling in the case Bell Atlantic Corp. v. Twombly, the U.S. Supreme Court now requires the plaintiffs who file fraudulent conveyance claims to include enough facts in their complaint to make it plausible – and not merely possible or conceivable – that they will be able to produce the facts necessary to prove their claims. An experienced Atlanta banking attorney can help banks and other lenders determine what evidence is sufficient for filing a fraudulent conveyance claim in any specific case.

WHO HAS LEGAL STANDING TO FILE A FRAUDULENT TRANSFER ACTION?

Standing to bring fraudulent transfer actions varies, depending on the circumstances. Under the Bankruptcy Code, a trustee always has the right to initiate a legal action alleging a fraudulent transfer. Under the UFVA, both present and future creditors may also bring a claim asserting a fraudulent conveyance. A future creditor is defined as a creditor whose claim arises after the transfer in question, but which had a foreseeable connection to the debtor at the time of the transfer.

The Uniform Voidable Transactions Act establishes the right of a creditor to sue a debtor for fraudulent conveyance and also to take legal action against any person or company who has received the fraudulently transferred assets or property from the debtor. A creditor’s claim prevails when there is a recovery of the property or assets from the company or person to whom the property or assets has been fraudulently transferred.

The UVTA makes several key improvements to Uniform Fraudulent Transfer Act. The clarifications regarding burdens of proof and legal standing to bring a claim, along with the revision of “fraudulent” to “voidable,” will reduce the confusion among judges, attorneys, and the principals in fraudulent conveyance cases. The other minor changes to the UFTA made by the Uniform Voidable Transactions Act modernize the act and bring it in into compliance with other uniform laws and the U.S. Bankruptcy Code. Overall, for the banks and the other lenders who are victimized by fraudulent conveyance, the changes are helpful and positive.

For more information, speak to our creditor representation attorneys today.

An employment contract should precisely spell out the rights and obligations of both employees and employers. A written employment contract is a legal agreement negotiated and signed by both the employer and the employee. In recent years, after losing too many valuable employees – and too much intellectual property – to the competition, companies are increasingly asking – and sometimes requiring – their employees and job applicants to sign employment contracts that include non-compete agreements.

Also called a “covenant not to compete,” a non-compete agreement is essentially an employee’s pledge to an employer that he or she will not go to work for a direct competitor for a certain period of time after leaving the employer. If you are a business owner who is considering non-compete agreements for your employees, you face two questions. Is it really worth the effort, and if so, how do you draft a non-compete agreement that the courts will enforce?

ARE NON-COMPETE AGREEMENTS WORTH THE EFFORT?

You’ll have to decide for yourself if drafting and having employees sign a non-compete agreement is worth the effort. Clearly, one benefit is that non-compete agreements will impair the ability of your competitors to lure valuable employees away from you. A non-compete agreement is also legal protection for your confidential data. Almost every company needs an effective strategy for keeping sensitive information and trade secrets out of the hands of the competition.

Trade secrets are not easy to protect. Anything from a list of clients or contractors to a unique electronic circuit design or a complicated chemical formula can be a trade secret. A trade secret is typically something that gives your company its edge or uniqueness, and as the business owner, it’s something you want to be kept secret. When an employee who knows or has access to your trade secrets leaves, he or she could take and use your trade secret for personal gain. If that ex-employee is hired by a competitor, your trade secret will probably be disclosed – unless you insisted on having that employee sign a properly drafted non-compete agreement.

In California, non-compete agreements can almost never be enforced against employees. California law does not recognize non-compete agreements except in very rare and precisely spelled out circumstances, but the law in the state of Georgia gives more rights to employers. In this state, businesses have the right to sue ex-employees for breach of contract, including the breach of non-compete agreements, and employers in Georgia may also sue for revenue lost through the breach of a non-compete agreement.

WHAT MUST BE INCLUDED IN A NON-COMPETE AGREEMENT?

Non-compete agreements can legally protect an employer’s trade secrets, but the language of a non-compete agreement cannot be open-ended, vague, or ambiguous in any way; no employer can restrict an ex employee’s work options everywhere and forever. The law puts a high priority on every person’s freedom to earn a living, so the language of non-compete agreements must be extremely narrow, limited, and precise. An enforceable non-compete agreement in Georgia must include three considerations:

1. Geography: In most cases, a non-compete agreement must specify a particular community, region, or state(s) where the ex-employee cannot launch a new business in direct competition with the ex-employer. The geographic range specified will depend on the nature and range of the employer’s business.
2. Duration: A non-compete agreement must have an expiration date, which is typically from six months to two years. Georgia employers should know that in most cases, a non-compete period exceeding two years will not be enforced by this state’s courts.
3. Scope: Non-compete agreements must use exacting language to define precisely what employment activities an ex-employee may and may not engage in for the duration of the non-compete period.

Before a business owner decides to require non-compete agreements, he or she should be sure that there’s a genuinely good reason for the requirement. Don’t require non-compete agreements just to keep employees from leaving or to penalize them if they do. The most common and one of the best business reasons for requiring a non-compete agreement is to keep an ex-employee from poaching your customers or clients to establish his or her own new business. If you can’t provide a judge with a persuasive reason why you required an employee to sign a non-compete agreement, that judge may have difficulty finding a good legal reason to enforce the agreement.

WHO BENEFITS FROM A NON-COMPETE AGREEMENT?

Employment contracts are “agreements” – hence, they must offer a benefit to both parties. The law requires employers to provide something in return for an employee’s signature on a non-compete agreement. If a job offer hinges on the non-compete agreement, hiring the applicant who signs the agreement satisfies that requirement. If someone is already your employee, an employer will need to link signing the non-compete agreement to a raise, a promotion, or to some other tangible benefit.

A non-compete agreement must be “reasonable” in the eyes of a judge, so don’t ask for too much. The courts will not enforce an unreasonable agreement anyway, and it won’t be worth anything. Instead, make sure that you have an agreement that simply meets your most basic business needs. The legal limits placed on non-compete agreements are there to protect workers from unethical employers. So long as a non-compete agreement doesn’t ask for too much and exists for a genuine business reason, courts in the state of Georgia will almost always enforce it.

In an employment contract, every line and every word is important. Employers need to have precisely-worded employment contracts that are drafted exclusively with your business needs in mind. That’s one reason why the advice and services of an experienced business attorney is imperative. A good business lawyer can protect your operation by creating employment contracts that satisfy your business needs and are not subject to misinterpretation.

In Georgia, employers should have an experienced Atlanta business attorney review every line and every word of your current employment contracts. If changes are needed, your attorney will make recommendations. An Atlanta business attorney should also draft or review all of your employment contracts in the future – before anyone signs them. The modest expense of sound legal advice is a small price to pay for peace of mind, and it’s a wise investment against legal difficulties in the future.

Commercial property is real estate that is owned or used by businesses. Most states, including Georgia, enforce a number of laws that deal specifically with commercial property issues. Commercial real estate law establishes legal standards for commercial leases and for the purchase and sale of commercial real estate. This is an introduction to the most common legal issues surrounding commercial property, but anyone in Georgia with specific concerns regarding commercial real estate or anyone involved in a legal dispute involving commercial real estate should discuss the matter in detail with an experienced Atlanta commercial real estate attorney.

HOW DO RESIDENTIAL AND COMMERCIAL REAL ESTATE DIFFER?

What are the core legal differences between residential real estate and commercial real estate? Unlike residential real estate, commercial real estate must comply with special commercial property insurance rules. There is also the matter of conduct: some types of conduct are allowed only in residential areas and zones, while other kinds of behaviors are allowed exclusively in commercially-zoned districts. Commercial real estate is also usually associated with distinct legal issues which may include:

• Zoning and Land Use: Typically, commercial activities may only be conducted in commercial zones and on commercial properties. Zoning by local governments determines how owners may use commercial properties and what they can build there.
• Leasing Issues: There are a number of types of commercial leases, each with advantages and disadvantages for owners and lessees. A “fixed” lease is comparable to a residential lease – parties agree to a specific amount of rent for a fixed time period. Parties in a “step” lease agree to annual rent increases. In a “gross” lease, a tenant pays a set periodic or fixed-term rent, and the landlord pays some or all the operating costs of the business.
• Property Taxes: Taxes on commercial real estate are usually higher than taxes on residential properties, and taxes may also differ depending on the type of business conducted on the property.
• Insurance Coverage: Commercial property insurance disputes are a common source of legal aggravation for far too many businesses and commercial property owners. Usually, commercial property insurance covers most real property as well as the items or fixtures associated with conducting routine business. In most cases, disputes can be avoided by having an attorney thoroughly review a commercial property insurance contract.
• Ownership Disputes: Many businesses and commercial real estate owners deal almost constantly with title, ownership, boundary, and/or leasing disputes.
• Boundary Disputes: Some commercial real estate disputes are boundary disputes over the physical boundaries of a property. Title and boundary disputes are less common today due to better record-keeping, but disputes can still arise when records are old or when the property description in a deed lacks the needed specificity.

WHAT CAN AFFECT POSSESSION AND TITLE OF COMMERCIAL PROPERTY?

Because a number of legal issues will inevitably come into play, anyone who becomes involved in the leasing, sale, or purchase of commercial real estate in Georgia will need to obtain the insights of an experienced Atlanta real estate attorney. Anyone who decides to purchase commercial real estate in Georgia should also be aware of several factors that will affect possession and title. Those factors include:

• The seller’s awareness of material defects: Most states, including Georgia, require a seller who is aware of a problem with a commercial property to disclose the problem to the buyer.
• Actively concealed material defects: Generally, it is illegal for a seller to hide a defect actively in order to make a sale of a commercial property.
• The buyer’s obligation to inspect: Prior to purchasing a commercial property, a buyer must have it inspected for defects by a licensed or certified property inspector. Generally, a seller is not liable for a problem with the property if the seller did not know about the problem and did not actively conceal it.
• Encumbrances: An encumbrance may limit the rights of a property owner. Encumbrances can include deed restrictions, liens, easements, and encroachments. An encumbrance is any claim or liability against a commercial property that affects the title to the property.
• Environmental and zoning issues: Environmental and zoning issues affect almost every commercial property. The specifics will depend on the real estate’s location and on the type of business conducted there. Most local governments create separate districts for residential, business, and industrial properties. If an owner’s land use or proposed use does not conform to the current zoning, the owner can usually apply for a variance.

WHAT SHOULD YOU KNOW WHEN LEASING COMMERCIAL PROPERTY?

Anyone who is leasing commercial real estate should also be aware of some additional concerns. Most commercial leases, for example, are not covered by most of the consumer protection laws that govern residential leases. There are no caps on security deposits, and it is not easy to break or change a commercial lease. Before you sign any commercial real estate lease, have it reviewed by a trustworthy real estate lawyer.

And before signing any commercial lease agreement, you’ll also want to make sure that the lease meets your business needs. Consider the rent payment and make sure that you will be able to handle it. A short-term lease with renewal options is usually best. Also, consider the physical layout. If your business requires changes to the space, make certain that you or the landlord can and will make the modifications.

WHAT DOES THE AMERICANS WITH DISABILITIES ACT REQUIRE?

The Americans with Disabilities Act (ADA) requires all businesses in the United States that are open to the public or that employ more than fifteen people to make the premises accessible to disabled people. Make certain if you lease commercial property for a business that you and your landlord are in agreement about who will pay for any modifications that may be needed to be in compliance with the ADA.

Speak with an experienced real estate attorney prior to buying, selling, or leasing any commercial property. Because commercial real estate is usually linked with business uses and business contracts, the legal issues regarding any specific commercial property will invariably involve a mountain of documentation and paperwork. If you are involved in any legal issue or dispute regarding a commercial property, compile all of the documents and pertinent legal papers that are related to the property and discuss the issue or dispute with an experienced real estate lawyer.

If you are a business owner or a corporate executive, you already know that a “deposition” is out-of-court, oral testimony. Depositions are a part of the discovery process in which both sides gather information in preparation for a trial. Depositions are commonly used in litigation and are almost always conducted outside of court by the lawyers themselves without a judge’s supervision. Of course, every business owner or corporate executive in Georgia should already have the advice and services of an Atlanta business attorney who can help.

Depositions are usually conducted at the office of the court reporter or in the office of one of the attorneys or law firms involved in the case. However, depositions are also sometimes conducted at a witness’s workplace or home or in a nearby hotel’s conference room. Usually, a deposition is attended by the person being deposed, that person’s attorney, the other side’s attorney(s), a court reporter, and others who may appear in person or be represented by their attorneys. All parties to the action and their attorneys have the right to be present and to ask questions at a deposition.

HOW DOES A DEPOSITION DIFFER FROM OTHER SETTINGS?

If you are a corporate executive or a business owner, you may be a gifted public speaker, confident in front of audiences and at board meetings. But sitting in a deposition under the examination and scrutiny of a savvy, experienced trial attorney is a completely different kind of setting. Your carefully-rehearsed testimony could send your case spiraling in the wrong direction. Careful and early preparation can help avoid unanticipated questions and surprises in depositions. Here are some key points for corporate executives and business owners to consider.

First, admit to yourself that testifying is not a natural act. It’s not like an employee luncheon where you can simply breeze in with confidence and say a few words off the cuff. Testifying in a deposition is more like trying to speak to people in another country. The environment is constraining. Ask yourself how you feel about testifying. Is simply having to be there an aggravation? Are you afraid you might look foolish, or that you might even wind up demoted or terminated? The first step in a deposition is being brutally honest with yourself.

WHAT IS THE PURPOSE OF A DEPOSITION?

Secondly, understand that the success of the case does not rest solely on you. Everyone has a part in the case, and your part is but one piece in a larger scenario. Thirdly, be sure that you fully understand the purpose of your deposition. It’s not your job to offer all of the information you have about a case. A deposition is a fact-finding opportunity for the other side. Answer the questions precisely, and if the other side’s attorneys do not ask for a specific piece of information, don’t provide it. Volunteering information unnecessarily can potentially point to weaknesses in your case that the other side can exploit.

Next, become aware of the various strategies and tactics that opposing attorneys use. One strategy is the pose of the “friendly” opposing counsel. Longtime Modesto personal injury lawyer Jeff Nadrich suggests the attorney may actually be a nice person, but if the niceness is directed at you as a witness, it’s probably just a strategy to catch you off-guard. If you anticipate a contentious encounter, and instead you are greeted warmly, the opposing attorney is hoping that you’ll you drop your guard. Don’t. Litigation Insights, a legal consulting firm, offers these suggestions to business owners and corporate executives who are being deposed:

• Don’t have chatty conversations during breaks or when the camera isn’t rolling. Opposing attorneys use these opportunities to gather information that can later be exploited.
• Watch out for long pauses or the pose of “bumbling” and delaying. Attorneys know that witnesses tend to fill in uncomfortable pauses with additional details.
• An opposing attorney may play dumb as a tactic. Attorneys are never confused during depositions – they’ve done their research. The tactic is an appeal to vanity, as if the attorney is pleading to be “educated” by the witness. Don’t fall for it. You may disclose unnecessary details.
• Stay calm. Don’t let a surprising remark by an opposing attorney make you defensive and make you say more than you need to say.
• Don’t be overly prepared. If you provide thoroughly canned, well-rehearsed answers, your credibility might be questioned. There’s a presumption that “scripted” witnesses have been “told what to say.” Be as natural as possible under the unnatural circumstances. Of course, it’s imperative to anticipate what will be asked and to rehearse your testimony, but it is equally imperative to retain some sense of spontaneity while you are being deposed.
• Be ready to answer the tough questions. The wrong answers could discredit your testimony. You do not want to avoid or dance around tough questions. What you want to do is to answers those questions directly, firmly, and without hesitation. Make a list of the toughest possible questions an opposing attorney might ask, and have sound, direct answers ready.
• In business and corporate litigation, make sure – or have your attorney make sure – that none of your company’s other employees will be offering testimony that contradicts yours in any way.

HOW SHOULD SOMEONE PREPARE FOR A VIDEO DEPOSITION?

Video depositions are standard practice today. Trial jurors and others may see the video of your deposition, so you’ll want to keep these additional recommendations in mind when you give testimony that’s being recorded:

• Give short, precise answers.
• Appear knowledgeable and speak with confidence, but also be humble, not boastful.
• Maintain eye contact, be well-groomed and wear attire appropriate to your position.
• Be entirely familiar with any documents in question or any documents that could be presented.
• Try to avoid words or phrases like “I think,” “I believe,” “maybe,” or “perhaps.”
• Don’t wring your hands, fidget, or play with your glasses. These gestures indicate nervousness.
• Know when to say “I don’t know.”

Have your own attorney make certain that the video is set up so that it is clear to viewers that you are directly addressing the attorney who is questioning you. A witness who frequently looks off camera in a video deposition gives the appearance of being uncertain, or worse, the appearance of being coached. A deposition is unlike any other situation. It requires hours of preparation, and then you have to appear spontaneous. Don’t be intimidated. Help is available.

If you are a business owner or a corporate executive, and if you are expected to testify at a deposition in the state of Georgia, you may choose to seek help and advice from your own attorney, from an experienced Atlanta business attorney, or from another lawyer near you. Find someone who can be neutral and objective, and someone who has extensive experience handling depositions.