The most important deposition in any case is your client's deposition. An aberrant admission can serve up a summary judgment to the other side or cost you dearly at trial. Therefore the most important thing you can do in any case is properly prepare your client for deposition. Over preparation is the key. I suggest three meetings, which I will call (1) Reconnaissance; (2) Preparation and Indoctrination; and (3) Cross-Examination. I will discuss these meetings in greater detail in upcoming posts, but for now, let me provide you a general overview. The first meeting is a get-to-know you meeting with the client, where you learn everything he knows and secure all relevant documents. The second meeting is the initial preparation for the deposition, a how-to for depositions, and a review of all the relevant materials with the client. The third meeting is a dry run of the cross-examination he will endure. If after his deposition your client tells you that the opposing party's cross-examination was a cake walk compared to your mock cross-examination, then you've done your job. The most important part of preparing your client is appreciating that it will take time and should be begun well before his deposition date.
Your first meeting, which I refer to as the Reconnaissance meeting, affords you the opportunity to learn everything your client knows about the case and identify and secure all the relevant documents. This initial meeting can be done over the phone. After the introductions and general description of what to expect at deposition, take some time to learn everything your client knows about the case, the parties involved, the documents and any thoughts and opinions she may have about the proceedings. Also, determine the identity and location of all relevant documents and make arrangements to secure copies (originals where appropriate). This initial meeting affords you the opportunity to learn everything your client knows about the case, determine what information is helpful and what information is damaging and helps you begin to evaluate what type of witness your client will make at deposition. Let her know you plan on two additional meetings, the next a few weeks before her deposition and the third a few days before her deposition, both in person.
I have suggested an initial call with the client to go over the facts of the case and secure all relevant documents. This should be followed by an in-person meeting, which I refer to as Preparation and Indoctrination. During this meeting, you review with your client all the documents she has signed or initialed and all documents she had a part creating and ones with which she should be familiar. You want to avoid her being handed a document at deposition that she has never seen before. Ask her questions about all the relevant documents as well as the key pleadings and discovery (the complaint, the answer, answers to interrogatories) and ensure she is comfortable with them. You also want to go through the types of questions she will be asked and how she will be asked them. And what may be the most important part of this second meeting is the indoctrination part - where you teach her what opposing counsel will try to do and how she cannot be a willing participant in her own self-destruction. You need to indoctrinate her so she understands opposing counsel is not her friend. Opposing counsel is there simply to secure admissions helpful to his case and harmful to hers. Opposing counsel is a wolf in sheep's clothing, who has an agenda and will try to use her to satisfy that agenda. The better she understands what opposing counsel is up to and how to answer his questions (and just as importantly, how not to answer them), the more effective she will be in deposition. This will likely be a long meeting and you may send your witness home with a binder of the relevant documents you reviewed with her so she reviews them again. You want this meeting at least two weeks before trial so that if any issues come up or if you need to secure additional documents, you have the time to do so.
During your last and final meeting with your client, go through a mock cross-examination with her. Ask the questions you expect the other side to ask. Ask the questions in a manner you expect the other side to ask them. This is an opportunity for your client to experience a deposition and appreciate what to expect. It is an opportunity for you to identify questions that cause your client to stumble so that you can help her navigate those questions. Tell the client that you will be acting as opposing counsel and that you will be asking the same questions you expect opposing counsel to ask. If you know your case well, odds are that you can think of every question the other side will ask. In fact, because you probably know facts about your case and your client that the opposing counsel does not, your mock examination will likely be much tougher than the actual deposition. Though you should never be rude or insensitive during the mock cross, don't pull any punches. You and your client need to see first hand how she's going to respond to the tough questions. As you go through the exam, stop at certain times and critique her answers and her manner of answering them so that she can make the necessary adjustments. You want to do your best to ensure your client knows what the tough questions will be and will be prepared to answer them.
As I mentioned, your first meeting with your client about her deposition should be a fact gathering session. You'll explain generally what a deposition is and what to expect, but the focus of the meeting (or phone conference) is learning everything your client knows about the case. During that meeting, consider asking her the following questions.
1. What do you know about the allegations in the complaint?
2. What do you know about the facts of the case?
3. How were you involved with this case?
4. Who are the potential witnesses?
5. Who was responsible for what occurred and why?
6. What documents do you possess relevant to this case?
7. What documents have you signed that are relevant to this case?
8. Who have you talked to about this case?
9. What statements, if any, have you given about this case?
10. What investigation have you conducted?
11. Are you aware of any incident reports?
12. Are you aware of any standards or protocols applicable to this case?
13. Was there a formal inquiry made by a local, state or federal agency?
14. Was there any media coverage?
15. Are there any relevant policy manuals, contracts or agreements?
16. Have you received or sent any correspondence or e-mails about this case?
17. Are there any relevant records we need to preserve for litigation?
18. Have you had similar cases or incidents in the past?
19. Have you given a deposition before?
20. Do you have any additional information about this case, the parties or relevant documents?
When preparing your client for deposition, it is important you review with her any document she may be confronted with at deposition. It is very rattling for a deponent to be confronted with a never-before-seen document. So, gather all the relevant documents and create two sets of binders - one for you and one for your client - to review them with her in a face-to-face meeting. The binders should include:
1) the complaint
2) the answer and affirmative defenses
3) any interrogatory answers the client, or a client's representative, has signed
4) incident reports
5) governmental investigative reports
6) company policies and manuals
7) applicable federal and state regulations
8) applicable county and city ordinances
9) correspondence and e-mails between the parties
10) agreements, contracts and related documents between the parties
11) the notice of deposition
12) prior statements
13) media reports
14) client's company's website
15) client's social media posts
Ask yourself, if I were opposing counsel, what documents would I confront the client with? Is there a federal regulation right on point that my client allegedly ignored? Is there something on her website that undermines her position? Is there something on her Facebook site which can be used as an admission against interest? Review those documents you expect your client to be cross-examined with so as to avoid surprise.
When preparing your client for deposition, it's tempting to gloss over the mundane, but covering the basics will help settle your client's jitters. You have handled plenty of depositions. This is likely your client's first. With that in mind, in addition to covering the finer points of deposition techniques, make sure you cover the following basics with her regarding the deposition:
1. Location
2. Directions
3. Parking
4. Attire
5. When to arrive at the deposition
6. What documents to bring
7. What documents not to bring
8. Who will be in attendance
9. Court reporter's role
10. Your role (what you, as counsel, can and can't say and do)
11. Opposing counsel's role
12. Client's role
13. What is a transcript
14. Significance of oath (perjury implications)
15. Any quirks of opposing counsel
16. Where everyone sits at deposition
17. What objections are
18. How long will it take
19. Breaks
20. Lunch
21. Reading the transcript
22. Making changes to the transcript
We all have rules for our clients for their depositions - a list of what-to-dos and what-not-to-dos. Consider reducing your list to writing and have it handy to ensure you cover all the basics during your next depo prep. Over the next several posts, I'll provide a proposed list, starting with:
1. Listen to the questions. Pause before answering them.
2. Tell the truth.
3. Don't answer a question you don't understand. Ask that the question be rephrased.
4. Answer audibly.
5. Answer verbally. Court reporters can't take down nods of the head.
6. Be polite.
7. Don't argue with opposing counsel. Don't lose your temper.
8. Avoid sarcasm, jokes and rude behavior.
9. Opposing counsel is not your friend. Don't fall for opposing counsel's friendly overtures.
10. You can take a break if you want one. Feel free to ask for one.
11. Don't guess. If you don't know, say so.
12. If you don't remember, say so.
13. Often, the best answers are the shortest ones.
14. Don't volunteer information.
15. Answer only the question asked. If you're asked, "Do you have the time?" The answer is "yes." It's not "2.30 p.m."
16. When asked about a document, ask for it and take the time to read it before answering any questions about it.
17. Don't exaggerate.
18. Don't think out loud.
19. Many questions you will be asked can be answered with: (1) yes; (2) no; (3) I don't know; (4) I don't recall at this time.
20. However, don't be forced to answer "yes" or "no." Sometimes qualifications are necessary.
21. Be wary of leading questions.
22. Be wary of compound questions. Understand if you answer "yes," you are answering yes to the entire question.
23. Be wary of summaries of your testimony. If the summary is incorrect, say so.
24. Sometimes, the less you say the better.
25. This is not a friendly conversation. It is an interrogation. Treat it that way.
26. Listen to the objections your counsel makes.
27. If you're instructed not to answer by your counsel, don't answer.
28. If you don't know what a word means in a question, don't be embarrassed to say so.
29. Don't assume you know what a question is and start answering it before it is completed.
30. Dress appropriately but comfortably.
31. Don't take notes during your deposition. The interrogator will you ask you about them.
32. Be careful of questions that use absolutes, like "never" and "always."
33. Don't assume anything you say is "off the record."
34. Don't object to questions. That's what your lawyer is there for.
35. Only bring those documents to a deposition your lawyer asked you to bring. Before the deposition, show your lawyer what you brought.
36. Don't discuss the deposition in the bathroom, hallway or on the phone. You never know who may be listening.
37. Be yourself.
38. Don't let the attorney's pregnant pauses or silence compel you to keep talking. Once you're done with your answer, stop. Don't continue explaining it.
39. If the interrogator is confused or lost, don't help him.
40. Your conversations with your lawyer are privileged. Don't offer them up in deposition.
41. Avoid superlatives.
42. Whatever you say to opposing counsel will find its way into the record. Do not fraternize with opposing counsel during breaks.
43. Ask to read the deposition at the end. Do not waive the reading of the deposition.
44. If you made a mistake or misspoke during the deposition, let your attorney know before the deposition is over.
45. Try to remain relaxed while remaining vigilant.
There's little more unnerving than watching a client being asked about a regulation, rule or procedure with which he should be familiar but that he has never seen before. It's your job to ensure that your client is aware of the relevant regulations and understands them. First, ask yourself does the case involve any rules or regulations that dictate the behavior or actions of the parties? In a products case, there may be relevant federal regulations or ANSII standards. In a premises case, there may be a relevant building code ordinance or industry standard. In an employment case, there may be an applicable protocol in a policy manual. In a medical malpractice case, there may be a leading medical text, journal article or standard put forth by one of the voluntary medical associations. Figure out all the applicable rules that serve as the prism through which to evaluate the facts of the case. You can start with simply typing "rules, regulations or protocols applying to X," inserting the search (and whatever "X" may be) in Google. Ask your client about applicable standards. Look at industry groups your client belongs to, and see if they reference any standards. Also, if you have retained an expert, ask her too. You don't want to be surprised at deposition (and you certainly don't want your client be surprised) with a never before seen protocol, especially if it may be determinative of the standard of care.
Before her deposition, your client should understand the legal underpinnings of her case. You should explain to her what is needed for her to win the case and what the other side needs for them to win their case. Go through the causes of action alleged in the complaint and explain the elements of each and the defenses to each. If there is a counter or cross claim, explain the significance of those too. For her to perform optimally, she needs to understand her role in the case and for her to do that, she needs to understand what each side needs to prove (or disprove). You went to law school and your client didn't, so don't get bogged down on every legal nuance. However, explaining the legal side of the case to her will help her understand how the facts she will be testifying about either advance or hurt her case. And explaining the law to your client will help you become adept at explaining it to the jury. Therefore, during one of your depo preps, have a list of the causes of action, the elements and defenses (pulling the jury instructions can serve this purpose), and run down the list with her. This legal outline will serve as a framework for the facts of the case, and as an outline for your depo prep.
When an attorney notices your client for video deposition, he is planning on making your client look bad and showing it to the jury. Your job is to make her look good on video. To do that:
1. Ensure your client dresses appropriately.
2. Consider videotaping a segment of your deposition prep. You don't need all the equipment a videographer would use. Just use the recording feature on your phone and record your client as you ask her a couple of dozen questions. Then watch the video with her and critique her mannerisms and delivery. Too many "ummms" perhaps? Maybe she plays with the sleeve of her jacket. Do another dry run or two on video until you and her are satisfied with how she looks.
3. Be prepared for the "aha" document. The reason you video tape someone is because you want to catch them "in the act." Chances are there is a smoking gun document, or possibly a surveillance video, that the other side wants to spring on my client and wants to capture her reaction on video. Therefore, when you see a notice of video tape deposition come across your desk, work doubly hard to ensure you have all the relevant documents and videos at your disposal.
4. Be prepared to be asked "to draw" something. In an auto accident, it's not uncommon for a witness to be given the police report diagram (minus the cars, which have been whited-out), and be asked to draw what happened. Generally, caselaw will dictate whether a party may be asked to do such a thing. Have those cases ready and have a plan as to whether your client will or will not draw a diagram of the accident.
5. Remember that some of the traditional "deposition rules" don't apply. For example, you would generally tell your clients to take as much time as she needs to think about a question before answering it. On a transcript, you can't see how long a witness took to answer a question. However, on video, frequent and long pauses may come across as if the witness is trying to hide something. Therefore, when teaching your client the rules of the road for a deposition, modify them for purposes of a video deposition.
Read more on Frank Ramos' blog, Tips for Young Lawyers. Francisco "Frank" Ramos, Jr. is the administrative partner at Clarke Silverglate in Miami, Florida, where he practices in the areas of products liability, employment, commercial litigation, medical malpractice, class actions and general liability.
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