10 Tips to Making Sure Your Client Is As Prepared As You Are For Their Deposition
This is the first of a two-part blog. Check back tomorrow for tips 5 through 10.
Tip 1: Make Contact with Your Client.
If you’re the one defending your client’s deposition, you should be the one to call him and let him know that. You should also let him know when and where his deposition is going to take place. Further, use this call as an opportunity to update your client on the status of the case and explain to him how his deposition fits into the litigation process. Explain the importance of his deposition and the testimony he offers in it; inform him about opposing counsel’s reason for taking his deposition and explain how the deposition may impact the case. At this time, also assure him of your role in the process and how you will be there to assist him get through the deposition. This is your chance to set the tone and inspire confidence in your client which will reduce his anxiety and ensure his allegiance to you at deposition (not to opposing counsel who may try to butter him up to get more information).
Tip 2: Get to Know Your Client.
Ask your client about his background and interests before his deposition. Determine if he’s married, single, has children, many friends or a significant other. These people are potential witnesses of which you need to be aware. Moreover, they will likely come up in the deposition, especially if your client has talked to them about the case. Also, determine if your client has been deposed before, and establish the circumstances surrounding that case and deposition. For example, was your client a plaintiff, defendant or third party witness? If your client was the plaintiff, ascertain whether he has filed many lawsuits in the past. If he was the defendant, determine how many times he has been sued, then establish whether the same conduct is at issue in your case. Also, if your matter is an employment case, and your client is no longer employed by the defendant, ask why not. The last place where you want to hear your client was terminated by his employer for stealing company secrets is at his deposition.
Tip 3: Set the Scene.
Explain to your client exactly what he should expect at his deposition. Tell him who will be present. Explain who the court reporter is and her role in keeping the deposition transcript clear. Explain that his testimony will be under oath and that the court reporter will swear him in. If his deposition will be videotaped, explain that too. Also, be candid with him regarding the implications of having his testimony on video camera and how it may be used at trial. Let him know that you will be sitting next to him and opposing counsel, across from him (likely with his client or another attorney). Explain the question answer format of the deposition to your client, and let him know that he should expect to receive admonitions from opposing counsel which lay the ground rules for the deposition. Most importantly, inform your client that although opposing counsel asks the questions, he leads the deposition. Make sure your client understands his ability to take breaks when he needs to, ask opposing counsel to clarify or rephrase a question, or limit his answers to a “no,” “yes,” “I don’t know,” or “I don’t remember” response.
Tip 4: Discuss the Issues and Underline the Theory of the Case.
Your client should understand all allegations in the complaint, as well as any possible defenses, regardless of whether he is a plaintiff or defendant. If your client is the plaintiff, he should know the general principles that support his recovery and what facts or testimony can circumvent or disrupt that recovery. Likewise, a client who is a defendant should know what facts will establish the plaintiff’s case and what facts will undue it. Most times, your client is not a lawyer and so cannot afford to get bogged down with legal rules or citations—it’ll likely be nearly impossible for him to remember every allegation in the complaint if it’s described to him by citing legal statutes anyway.
Rather, discuss your case theory with your client logically and tie it to his real life factual experiences with the case. In a false advertisement case, for instance, don’t bother mentioning the UCL, CLRA or Section 17200. This will only confuse and overwhelm your client. Just ask your client to recall the facts that led to his false advertisement claims, and identify which of those facts are most significant to his case and explain why. For example, when your client explains that he bought a product because he saw an advertisement that said it would do X, but after using the product it didn’t do X as advertised, the key facts to highlight for your client are, he: 1) bought a product – this represents the money your client spent and is entitled to recoup pursuant to this lawsuit, 2) saw an advertisement which caused him to purchase the product – this establishes reliance on the advertisement, and 3) the product didn’t do X, as advertised – this establishes defendant’s misrepresentation. Remind your client that it’s your job to worry about the application of the law and his, the accurate recollection of the facts.
Tip 5: Review All Potentially Damaging Documents Produced or Received.
Reviewing every single document produced in the case during deposition preparation may seem an impossible task, and depending on the number of documents actually produced, it may very well be. Nonetheless, every effort should be made to review with your client any and all documents that mention him by name. If the catalog of information is massive, load it electronically using software that will permit you to run a search for your client’s name in all its variations. If the volume of documents is small, you should have no trouble. Also, be sure to review documents that could potentially hurt your case. Ignorance is not bliss! Every single “bad” document needs to be put in front of your client before his deposition. Get his interpretation of it and figure out how it best fits within your case.
