Five Tips to Guarantee a Successful Plaintiff's Deposition
The plaintiff’s deposition can make or break your case. At the conclusion of the testimony, the defense will have a lasting impression of your client and the likely impact their testimony will have on a jury. A well prepared, well educated client is the key to a successful deposition. Here are a few tips:
1. Educate the client about the process. Most clients have never been deposed and have no idea what to expect. Explain the court reporter’s role, where the client will sit, where you will sit and where defense counsel will be seated. If the deposition is to be videotaped, explain the set-up including how to handle the microphone. In the case of multiple defendants, explain the order of questioning and the fact that they will not be required to repeat testimony already rendered with each subsequent questioner.
2. Explain that a deposition is not a conversation. As attorneys, we are justifiably concerned our clients may volunteer information they were never asked about. Impress upon your client that a deposition is a question and answer session with answers given under oath. It is not a conversation. Let them know they are under no legal obligation to fill any silence in the deposition by speaking, unless there is a question pending.
3. Tell your client to answer the question they are asked, not some other question. Answering some question they were never asked is the most common cause of volunteering information. Reinforce that they will be under oath to tell the truth and they must tell the truth. But there is a difference between telling the truth and volunteering information. Practice asking questions of your client and listen to their responses. After only a few questions, you will be able to determine whether he/she is at risk of volunteering information.
4. Instruct your witness to answer “yes” or “no” whenever possible. The best way to slow the pace of the deposition and to put your client more in control is to instruct them to answer “yes” or “no” whenever possible in response to a question. These responses will force the defense to ask clear and concise questions and will reduce the likelihood your client will volunteer information. If they cannot answer the question with a “yes” or “no”, they should give a complete response and wait for the next question.
5. Reassure the client that they will not be embarrassed, humiliated or badgered. Explain to your client that the deposition has two purposes from the defense perspective. One purpose is to get information and the other is to assess how a jury will respond to them as a witness. Because they want information, defense counsel also wants the witness to be relaxed and, therefore, talkative. For this reason, 99% of depositions are not made confrontational by the defense. However, reassure your client that if the defense attorney does engage in unacceptable behavior you are prepared to handle the situation and explain what you will do.
