10 Tips to Making Sure Your Client Is As Prepared As You Are For Their Deposition
Part 2 of yesterday's post.
Tip 6: Explain the Purpose and Impact of Making Objections on the Record.
We all know speaking objections are not permitted. But if your client is properly prepared, speaking objections will not be necessary. Instruct your client that absent any attorney-client privilege, he will have to answer every single one of opposing counsel’s questions, unless the question is unclear or confusing (in which case, as you’ve instructed, your client will say he doesn’t understand the question and ask opposing counsel to rephrase). But before he answers any question, your client should know that you may be making an objection for the record which may impact the admissibility of your client’s response at trial. Let your client know that if you’re making an objection, he should wait until you’re finished stating the grounds on the record before he responds. Unless, you instruct your client not to answer, he should know to answer the question accordingly.
However, your client should understand that your objections are intended to aid his understanding of the question as well. For example, if my objection is “vague and ambiguous,” my client should be aware that the question may be unclear, if my objection is “overly broad,” my client should be aware that the question may be loaded and request too much information for a single response, if my objection is “assumes facts not in evidence,” my client should be aware that the question likely contains factual information that my client hasn’t yet agreed to, if I object that a question is an “improper hypothetical” or “impermissible narrative,” my client should know that the question is likely a sloppy summary of his earlier testimony, and if my objection is “calls for speculation,” my client should know that his response should be “I don’t” if he has to guess in order to answer the question.
Tip: 7: Conduct a Mock-Deposition.
No matter how much you analyze the facts, review the law, discuss admonitions or build the deposition scene, there is no substitute in deposition preparation for sitting in the seat of opposing counsel and asking your client the tough questions. Usually after I go over the top 6 Tips listed above, I’m ready to test my client’s listening skills and my teaching abilities. I choose two to three tough areas at issue in the case and create a list of five to ten bullet points and then start asking questions. If my client volunteers information, I ask more questions. I also paraphrase much of what my client says to test his memory. If my client agrees to a paraphrase that is different from what he testifies, I remind him to listen.
Tip 8: Deposition Preparation Doesn’t End When the Deposition Begins.
Another important thing to note is that deposition preparation is ongoing throughout the course of the deposition. So, monitor your client’s testimony and take notes. Taking notes will keep you focused and allow you to track the mindset of opposing counsel. Also know that even though you may have adequately prepared your client, there is still room for error during the deposition. A number of factors could cause this, your client’s nerves, a particularly skilled deposing attorney, an unfamiliar document, or a question your client doesn’t understand, etc. Whatever the cause may be, you want to be aware when it happens, but even if you’re not, you are now, so don’t be afraid to have the court reporter read back the record in order to give you and your client an opportunity to set things straight. Your notes should guide you.
Also, review every document before it’s turned over to your client for questioning. Quickly, establish its relevance and potential impact on the deposition as well as your case. Given the broad standard for relevance, there’s unlikely much you can do to keep this document from your client’s eyes, unless you have a court order limiting the scope of the deposition or your client is a PMK or 30(b)(6) witnesses produced for specific topics. Even so, I make sure I look at all documents first. I do this because I don’t like surprises. I’ve defended one too many depositions where my client got a document at the same time I did and I had to hold my breath while my client and I simultaneously had to make heads or tails of its contents.
Tip 9: Clarify the Record on the Record.
If something comes out during your client’s deposition that is other than what you thought or different from what your client said during his preparation, take a break and ask your client for clarification. Nine times out of ten, your client misunderstood the question. You might experience slight fire from opposing counsel if the break disrupts the flow of his questions, but he will thank you in the long run because it keeps the record clean, and it will keep him from having to go back through his questions once your client realizes the mistake. Once you’ve established that your client made a mistake (off the record), have your client state his misunderstanding on the record and provide a corrected answer.
Tip 10: Review and Evaluate Your Client’s Performance.
Be honest with your client after the deposition concludes. Let him know the strengths and weaknesses of his deposition testimony. Also, remind him if there is anything he recalls later that differs from what he testified to, he should let you know so that you can correct the record if deemed necessary.
