How to Prepare Your Client for Their Deposition – JD Supra

The most significant event in any case for the plaintiff or defense is your client’s deposition. Your client’s performance can either hurt or help your ability to prove the case.
In this article, you’ll learn tangible tactics that will aid in the process of preparing your client in advance of their deposition to help ensure they perform well.
The advice in this article is adapted from a CLE webinar series led by Harvey R. Friedman, Partner at Greenberg Glusker Fields Claman & Machtinger and Adjunct Professor at the University of Southern California Gould School of Law with 45 years of litigation and 20 years of teaching experience, and taken more than 1,000 depositions.
Never forget that nothing your client can say at the deposition can help them; it can only hurt them. That’s because you can’t use your client’s deposition testimony at trial, with rare exceptions.
The best outcome would be if a client only stated their name and avoided answering any other questions about their case.
Your client won’t understand that inherently, so you’ll have to take the time to explain it to them. They believe they have a solid case and want to tell their story. It’s your duty to inform them that their deposition is not the place to tell the story.
Let them know there will be opportunities to share their side at trial, but their job is to say as little as possible in their deposition.
When you’re talking to your client in your office, everything that is said is privileged and covered by the attorney-client privilege.
Today, the vast majority of depositions are recorded not only by a court reporter, but a videographer is also present are has their camera focused on your client.
The first thing you want to talk to your client about is their dress and demeanor. Your client should dress professionally in a suit, dress, or skirt. They should not wear jewelry, fancy watches, or anything flashy. Jurors generally don’t like displays of wealth.
Second, discuss the way they conduct themselves in the hot seat. As a habit, many people rock in their chairs or fidget. Tell your client to stay as still as possible, maintain eye contact with the taking attorney, and keep their hands crossed clasped on the table.
Eye contact is essential. When a client looks around the room, the jury could interpret that as an attempt to find guidance from their attorney.
Next, it’s important to remind your client that good guys win lawsuits and bad guys lose lawsuits. You want your client to come across as a good guy.
You don’t want him to be sarcastic during the deposition.
You don’t want him to argue with opposing counsel.
You don’t want them to joke; that doesn’t come across well on video.
The jury or the judge will see the video and make assumptions based on how your client acts.
There are two ways of reviewing the facts of the case with your client in advance of their deposition.
Ask your client to share the details of their case.
Tell your client, “these are the facts as I understand them..”
Your client may know what the facts are but not the importance of those facts. Your job is to tell the client which points are the most important. Once you finish that exercise, ask them, “Is that correct?”
You can ask if there were any mistakes or anything they want you to add, but be sure your client knows the key facts, so they have the best chance of winning.
Before you’re finished preparing your client for the deposition, you should simulate the deposition experience by practicing cross-examination.
Ask them the questions that you expect the opposing counsel will ask, and make sure they are tough. If you practice the hard questions in advance, your client will perform well on the day of their deposition.
Instruct your client to answer questions as briefly as possible. Help your client achieve this by asking them to listen for the first word of a question. The first word of many questions starts with the letter “W”; Who, what, where, when, why? Here are two examples of this in practice:
Q: Who was there?
A: Joe and John.
Q: When did it happen?
A: Thursday afternoon.
Tell your client to concentrate on the “W” words and answer only the core question being asked.
Your client should also be instructed not to answer any question they don’t understand. If your client does not understand the question, tell them to say, “Please restate the question, I don’t understand it.”
There are two times and two times only when your client should give complete answers to a question;
Suppose your client is a plaintiff in the case and has suffered damages and is asked, “What are your damages?” Your client should give a full answer.
If your client is asked a question about a conversation where the other side has made a damaging admission
Let’s say your client is suing as a plaintiff for breach of a contract, and they had a conversation with the defendant who admitted to the breach. If your client is asked about that conversation, they should describe it thoroughly.
Those two situations are the only instances where your client should give a longer answer than “yes” or “no.”
If your client is asked a question at a deposition, and they’re 100% sure of the answer, but it harms their case, your client must give that answer. Even though it’s harmful, your client is under oath and must tell the truth.
Assume that your client is asked a question and believes that the answer will hurt their case but is not 100% sure of the answer. Maybe they’re 90% certain of the answer, but not 100%. They do not have to answer that question.
Instead, tell your client to say these words, “I don’t recall at this time.” Don’t have them say, “I don’t know” or “I’m not sure.”
If the person taking the deposition asks, “Is there any way you can refresh your recollection?” your client should say there might be, but they are not sure at this time.
Instruct your client to keep the door open and not provide a definitive answer if they are not 100% sure.
Coaching your client is not permitted in a deposition. However, there may be times when you want to signal to your client that they have been asked a critical, tricky question.
Consider creating a signal with your client that will grab their attention the day of the deposition. For example, you could interrupt and ask the court reporter to read back the question that was just asked.
If you’ve prepared your client to understand that signal, this tactic immediately lets them know that the question is tricky, and they should be cautious about how they answer. This tactic also requires that your client pauses before answering questions to give you time to object.
There is another type of objection signal you can talk about with your client in the preparation process. You can say, “I object to the question on the grounds that…” and then you state the grounds.
Before the deposition, let your client know that they should pay attention to the grounds you state. With this tactic, you can tell the client by saying the grounds which signal how they should answer the question.
This approach is less common, so the best signal of an objection for your client is to ask the court reporter to please read back the question. Your client should stop speaking whenever you start to talk, even if they are in the middle of an answer. When you start to talk, your client should know to stop speaking.
Take a Break Outside of the Deposition Room
There may be times during the deposition when you’re concerned about how your client is going to answer the next set of questions. You are permitted to take your client outside of the deposition if this happens. No matter what the other side says, this is within your client’s rights.
You don’t want to take your client outside of deposition too often, maybe only once or twice. If you feel that your client is in trouble or you’re concerned about how they will answer a question, take them outside of the room.
Once you’re outside the deposition room, you can discuss your client’s testimony with them and what they can expect with the upcoming questions.
When you return to the deposition room, if your client is asked what they talked about, you should instruct them not to answer that question on the grounds that it invades the attorney-client privilege.
Once you have invested the time to prepare your client for their deposition, you must prepare yourself to defend them during questioning from the taking attorney.
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