Helping Your Client Prepare for Deposition Article

R. Lee Livingston

Most of us recognize that preparation is the linchpin of good trial work.  As one trial lawyer said, “Everything else – felicity of expression, improvisational brilliance – is a satellite around the sun.  Thorough preparation is that sun.”  Hence, we spend substantial time preparing our clients to testify at trial.  In most cases, however, the client’s deposition is his trial testimony, because most cases settle before trial.  Maximizing results for our clients may depend on thorough preparation of the client for deposition.

The client’s presentation, credibility, and competence in deposition influence the value of her case.  Of course, thorough preparation does not guarantee results.  Many of us have sat perplexed beside a client in her deposition, listening incredulously as she agrees with paraphrased answers, even after being specifically cautioned against letting opposing counsel put words in her mouth.  If you follow a thorough plan of preparation, however, though you may still sit perplexed in your client’s deposition, it will not be because you have failed to do your part.  The following comments encompass a broad range of advice you may want to give a personal injury plaintiff.  These ideas should be tailored for individuals based on their personality, intelligence, and other strengths and weaknesses you think may be important to their performance in deposition.

The Conference and Teaching Aids
Preparation takes time.  A client cannot adequately prepare for a deposition if you don’t discuss the deposition until the day it is taken.  Your preparation meeting should take place several days prior to the deposition to give your client time to reflect on your advice, form questions that can be answered in advance of the deposition, and review substantive materials, including supplemental handouts or videos, used by some attorneys as additional teaching tools.  Meet no more than a week prior to the deposition so your client will have your advice fresh in his mind.

Psychologists tell us people learn by listening, seeing and doing.  Supplementing your advice with a handout or videotape is helpful.  These materials should be supplementary, however, because nothing substitutes for a face-to-face meeting in which you focus your client on points she most needs to understand.  For example, you may have a verbose client who will volunteer volumes of information unwittingly.  A stoic client, in contrast, will need help recognizing that his deposition provides an opportunity to emphasize the depth of harm caused by the defendant.  Individual attention to these details precludes a cookie cutter handout or video which may save time at the expense of actual preparedness.

Focusing Preparation
Rather than beginning your pre-deposition conference with a list of dos and don’ts, it is better to ask your client what she knows about depositions and what questions or concerns she has initially.  Listening to your client’s questions and concerns will help you identify strengths and weaknesses and allow you to focus your advice.  If you simply regurgitate a standard, long list of dos and don’ts, your client may be (1) unlikely to absorb and remember all of the advice, and (2) overwhelmed by the volume of rules and unlikely to listen to any of it.  While dos and don’ts are important, and – in seeming contradiction to the advice just given! – a long list of them appears below, focusing on addressing core issues important for the individual person and the specific claim involved may yield better results.

Generally, if a client does not understand basic questions about what a deposition is and how it will be used, these issues should be discussed first.  Explaining the whys of a deposition will make hows make more sense.  Understanding why something is done will often help a client understand how to do it without specific advice concerning how.  Hence, you should discuss the defendant’s theory of the case and what defense counsel expects to accomplish during your client’s deposition.  It is probably more important for your client to understand these larger picture issues than for the client to memorize a list of “orders” about how to speak and how to watch for tricks.  For some clients, showering them with technical advice will undermine their confidence, which often diminishes the quality of their performance.  Make every effort to point out your client’s strengths, and the areas in which you believe your client will perform well.  As you give your client the cardinal rule, i.e., to tell the truth, also remind your client that the truth is on his side, and he need not fear gimmicks by opposing counsel or his own mistakes if he follows your advice about preparing for the deposition.

The substance of your pre-deposition meeting can be broken down into several categories:  (1) the basics, (2) good presentation, (3) overcoming nervousness, (4) avoiding traps, and (5) questions to anticipate.

Helping Your Client Understand the Basics

1. Explain who will be at the deposition, when and where it will take place.
2. Explain how the deposition may be used, including the fact it may be read by claims representatives who may have authority to place a settlement value on the case.  Also, under the rules of court, it may be used at trial.  It can be used not only for impeachment on cross-examination, but as direct evidence.
3. Explain the testimony will be under oath, so it is essential to tell the truth.
4. Emphasize the deposition is serious business which will have a significant impact on the case.  Ask the client to set aside a reasonable amount of time to review materials in preparation for the deposition and to think about the points you will discuss in your meeting.
5. Explain the defense theory of the case and what opposing counsel expects to accomplish.  It is important at the outset to provide context – the big picture.  Defense counsel is creating a record from which to look for inconsistencies with other testimony or documents, such as medical records – all in an effort to undermine credibility.  In addition, defense counsel will be examining the client’s ability to communicate, likeability, personality, as well as attempting to estimate how much sympathy a jury will have for the client, and assessing how much weight a jury is likely to give her testimony.
6. Critical liability issues should be covered early in the meeting.  For example, in a slip and fall case, your client must be prepared for the “Catch 22” line of questions concerning whether your client saw the foreign object or defect, whether she was watching where she was going, and why the defendant should have seen the foreign object or defect if she did not.  Burying critical points such as this in a list of dos and don’ts places inadequate emphasis on issues that may sink a claim.  While role-playing or rehearsing potential questions may be counterproductive, because you do not want your client to memorize answers or come across as rehearsed, an exception may be made where you expect tricks and traps, such as “Catch 22” slip and fall questions.

Helping Your Client Make a Good Presentation
The points below are in a form you can present to your client.

1. Do not treat the opposing attorney as an enemy, even though she is not your friend.  Answer even what you think are unreasonable questions with a polite and cooperative attitude.
2. While courteous, you should not volunteer information; you should answer on the question asked.  Being courteous does not mean volunteering information; you should maintain a professional, businesslike tone, but provide only the information called for by the question asked.  You may think you know what opposing counsel is trying to ask you, though he hasn’t asked the right questions.  It is not your job to correct questions or expand upon them.  Resist this.  Not only will you be helping a person who will make every effort to defeat or minimize your claim, but you will probably prolong the depositions as you answer questions that are not asked and thereby lead counsel into areas he never thought about covering.
3. I will object to questions which you should not answer.  If I do object, listen carefully to the objection so you understand the problem with the question and see what opposing counsel may be attempting to do.
4. Remember, no matter how nice opposing counsel may seem, avoid slipping into a conversational mode.  This may make you feel more at ease because you don’t want to be in an adversarial situation, but keep your businesslike, to-the-point attitude, because defense counsel’s “chummy” attitude is designed to make you feel comfortable and to open up like a long-lost friend – and, while he’s not your enemy, he’s not your friend either.
5. Dress as if you were going to court.
6. Speak clearly with confidence.
7. Keep good posture and don’t fidget.
8. Do not ask whether you have to answer a question during the deposition.  I will object if there is a basis to object.  If you must discuss something sensitive, we can ask for a break and discuss your concerns privately.  Generally, you have to answer every question unless it involves communications between us or a trade secret.  I do not anticipate questions in these areas.
9. Do not allow opposing counsel to cut you off.  You control your answers, and you should finish what you want to say without interruption.
10. Avoid nodding or shaking your head “uh-uh” or “huh, huh.”  Say “yes” or “no.”
11. Avoid expressions such as “I think” or “I guess.”  Be unequivocal in asserting what you know.
12. I may ask you questions after opposing counsel has finished.  If you are asked questions at the end of your deposition, it is because a correction or further explanation may be necessary.  Listen carefully to the question and cooperate as best you can in clarifying what you said.

Helping Your Client Overcome Nervousness

1. While you may feel as if your deposition is a test, try to think of it more as an opportunity for counsel to get answers to questions for which you already know the answer.  Because you have lived through the events in question, you need not fear getting an answer wrong.  Stick only to what you recall clearly, and you will be fine.  If you find yourself thinking the answer “must be. . .,” you are probably about to speculate about facts beyond your recollection.  Do not guess.  “I don’t recall” is as good as “yes” or “no,” if it is the truth.
2. Your deposition is not a test where you will be graded on your responses (although you may feel that way given the instructions I’m explaining to you today).  You have substantial control over the deposition.  The transcript will not show how long you took to answer a question, so a brief pause to think about each question before answering may be prudent.  Take a breath when you need it.
3. You will inevitably hear questions for which you think you should know an answer, but your memory has faded.  Feel no obligation to answer questions when you lack memory.
4. It is doubtful you will need a break, but if you do for any reason, you can take a break to use the restroom or take a breather.  Especially if your deposition is in the afternoon, you may need a few minutes to stay fresh and focused, and you should not be reluctant to take a break.  Chances are, the lawyers need a break as well, and you are not infringing on anyone’s schedule by asking for a break.
5. If you realize you’ve made a mistake before the deposition is over, you can fix it.  Do not worry about interrupting opposing counsel’s train of thought.  If you think of something you need to clarify, do it when you think of it.  You will have an opportunity to read your deposition and make changes to it before it becomes final.  You will do better if you do not worry about making mistakes, and since they can be corrected, you can relax.

Helping Your Client Avoid Traps

1. Watch out for questions that paraphrase your answers.  Lawyers often ask a series of questions and then try to summarize what you said.  Opposing counsel may summarize something you said earlier in the deposition later in the deposition after the subject has been changed.  Listen carefully to how the lawyer phrases the question, and if you feel better about the way you said it, say so.  When your answers are put in other words, the meaning may be changed in a way you might not catch at the time, so be careful.
2. Beware of questions that ask you to estimate time, speed and distance.  Generally, people tend to overestimate speed and underestimate distance.  Don’t be pinned down to a range with which you are not comfortable, and make sure the range is broad enough to cover potential errors in judgment.
3. Opposing counsel will try to block you from saying anything else about a subject by asking you, “Is that all?”  Tell her that’s all you remember now, and be wary of absolute statements that you have said everything there is to say about a topic, because you may recall or learn something later.  Beware of absolutes.  When you hear the words “always” or “never,” don’t be afraid to qualify your response.  Don’t get boxed in. 
4. Be sure you understand the question and agree with any assumptions in the question before you answer.  You are not required to answer every question without explanation.  If anything is confusing to you or you disagree with what you think is assumed by the question, stop and think about it.  Ask for clarification and explain if the question assumes a falsehood or doesn’t make sense for any reason.
5. Admit preparing for the deposition.  Tell opposing counsel you met with your attorney and what you read.  You have been sensible in preparing for what is an important part of your claim.
6. Bring nothing with you to the deposition.  Anything you bring with you is likely to be fair game for opposing counsel to peruse and will likely spark additional questions and prolong your deposition.
7. During breaks, avoid informal talk with opposing counsel.  You are being evaluated during breaks and outside the deposition, so maintain your businesslike, courteous demeanor at all times.

Questions to Anticipate
Personal injury depositions always cover several areas, so you can describe many questions that will be asked.  The following points will help your client anticipate questions and begin to develop substantive answers:

1. Biographical information will be requested.  You may feel some of it intrudes upon your privacy, but generally, opposing counsel will be able to ask about your family, employment, education, finances and similar issues.
2. You will be asked about every conversation you have had about the incident and your injuries.  You will also be asked who knows about he incident or your injuries.  Only the discussions you have had with your lawyer cannot be discussed.
3. A description of how the incident occurred.  You should review your interrogatory answers which include a description of the incident, as well as the complaint, to be sure you can explain what happened clearly and concisely.
4. The nature and extent of your injuries will be discussed in detail.  This is the only area where you may want to volunteer information that is not specifically asked.  Volunteer examples to show how you were hurt.  Explain what you can no longer do since the injury.  Explain what you can do now only with pain.  Describe, in detail, how this makes you feel, and how it has affected your enjoyment of life.  Describe how the injury has changed your ability to perform your job, your hobbies and interests, and how it has affected your family life.  As an example:  it is better to say, “My arm aches so badly after I play tennis that I have had to give up my weekly tennis outing with my friends,” than to say, “My arm hurts when I try to do things.”
5. Explain exactly what parts of your body were injured, being careful not to exaggerate.  Do not be afraid to concede areas where you have suffered no injury or limitations that do not exist.  Tell the truth about activities you have done since the incident.
6. If you have a lost wage claim, you will be asked to describe why you could not work and how you have determined the amount of money you lost.  You may refer to your interrogatory answers for this calculation, but it would be helpful for you to have a working knowledge of it.
7. You will be asked about your medical care.  While you may refer to your interrogatory answers, you should have a general outline of who treated you and what they told you about your care.  Do not be afraid to admit you do not know something you think you should know about your medical care.
8. You may be asked about any prior statements or testimony you have given.  Your best answer is to agree you made the statement, as long as it is one you actually wrote or signed, or if it is a court reported statement.  You can always explain what you meant.  If you do not recall making the statement or its content, simply state that you do not remember.
9. You may be shown photographs, drawings or records.  Ask questions about them.  Take your time and examine them carefully to see what they show.  You may be asked to draw a diagram.  Be careful to qualify what you are doing, which will not be to scale and may only be a rough estimate.  If you find it impossible to depict something, say so.

Conclusion
After the pre-deposition conference, you are left with relatively little control over how your client performs in deposition.  Without resorting to speaking objections, improper interruptions, or other subterfuge, you cannot manipulate the course of your client’s deposition.  While there is no guarantee our clients will be blessed with “felicity of expression and improvisational brilliance,” we can at least avoid any regrets upon a lackluster performance if we have provided thorough preparation.  Moreover, that preparation will minimize painful moments when things do not go as planned.

1. Louis Nizer, Newsweek, Dec. 1978.