10 Tips to Making Sure Your Client Is As Prepared As You Are For Their Deposition

Posted on August 11, 2010 by Elizabeth Hall

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.    

 
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10 Tips to Making Sure Your Client Is As Prepared As You Are For Their Deposition

Posted on August 10, 2010 by Elizabeth Hall

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. 

 
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