A deposition is an excellent tool for determining the strengths and weaknesses of your client's case during discovery.
Unfortunately, this means that if the deposition doesn't go well for your client, then their case can be in jeopardy. As a result, taking a deposition is a serious matter that, if not handled properly, can lead to an unhappy client.
The opposite is also true.
If a client handles a deposition well, then their case gets stronger, negotiations benefit your client more, and trial becomes less daunting.
Often times, the key to a client having a successful deposition is the lawyer's ability to prepare the client for their upcoming deposition. Considering most people have never taken a deposition before, a deposition can be a stressful experience for the client.
The best lawyers earn their client's trust and confidence by reducing the client's stress with a solid deposition preparation.
In this article, you'll learn the 12 do's and don'ts of depositions that you can use to get your client feeling prepared for their deposition.
Let's get started!
What are depositions used for?
A deposition is a process of taking sworn out-of-court testimony from a witness. It is designed to help you gather information as part of the discovery process in your client's case and may be used at trial (depending on the circumstances).
The person that is testifying during the deposition is known as the "deponent."
How to prepare your client for a deposition.
Since lawyers are unable to testify for their clients during a deposition, lawyers need to make sure that their clients are well prepared for their deposition.
Here are 12 do's and don'ts of depositions that you need to explain to your clients.
1. Don't stress about it
When clients realize they need to testify, they switch to panic mode. Can you blame them? Most people have zero deposition experience, so they assume that the process will be an aggressive, contentious experience like what they see in movies.
In reality, depositions can be pretty boring.
The typical deposition doesn't involve yelling, interrogations, and whatever else people see on shows like Suits. Therefore, properly describing a deposition is critical for you client to get a good night's sleep before the deposition.
You should thereby inform you client that depositions are essentially Q/A sessions and an opportunity for your client to tell their story.
By being the calm presence, you begin to lessen the anxiety that your client is naturally experiencing.
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2. Do assume the jury is going to see and hear the deposition.
Prep your client to assume that the deposition is being recorded and that the jury will see and hear the deposition. In doing so, make sure that your client dresses appropriately and that their attitude is right.
You don't want to be in a situation where your client is rude in a deposition and then acts friendly at trial. That type of fake kindness will be off-putting to the jury and will likely tank your client's credibility.
Even if your client is dealing with another lawyer that is asking sensitive questions or maybe has an attitude that gets on your client's nerves, you must ensure that your client has been coached to stay calm, polite, and profession in their overall body language and presentation.
This is easier said than done, but if you can get your client to behave appropriately, then the other lawyer will know that your client will present well to the jury.
3. Do take breaks.
Advise your clients to ask for a break if they need one, considering some depositions are long and draining. The only caveat is that your client needs to answer any pending questions that were asked prior to your client requesting a break.
The reason your client should answer the pending question before going on a break is that it looks like your client is going on a break to strategize their answer.
With that said, here are some reasons taking a break is a fantastic idea:
- It allows the client to become a bit more centered after answering questions for however long. The break helps them clear their head, get something to eat, stretch their legs, and relax a little before getting back to the deposition.
- It allows you to talk to the client and clarify some of the questions they may have been confused about or misunderstood. The client can then clarify their answer when the deposition resumes.
- It gives you the opportunity to inform the client about where you think the deposition is going and advise what could be the best way to handle it. For example, are you getting the sense that the lawyer is almost done? In that case, make sure that the client keeps their answers short and sweet so that they do not mistakenly open up the door to a new rabbit hole of questions.
4. Do pause between answering the question.
This deposition tip can be a little unorthodox because we are used to answering questions immediately after they are asked. In some situation, you will notice that you answer questions before the questions are even completely asked.
Here are some reasons why you client should pause after the question is asked:
- It helps your client make sure that they completely understand the question.
- It allows the client to formulate their best answer.
- It will give you (the lawyer) time to object, if needed.
5. Don't guess!
The desire to try our best to answer a question that we don't know the answer to is pretty natural. But, in a deposition, this instinct can do more harm than good. The last thing you want is for your client to speculate.
Instead, inform your client not to guess an answer to a question. By speculating, the client risks providing the wrong answer, which can harm their case. It is exponentially better (and easier) if the client simply says they don't know the answer.
Deponents are only obligated to testify on topics they know first-hand. Speculation is meant for the experts, not your client.
In fact, if your client does not know the answer to a question (because they don't have first-hand knowledge on the answer), then the correct answer is "I don't know." That said, ensure that the client does not default to the "I don't know" answer to avoid discussing specific pressure points on their case.
If the client starts defaulting to "I don't know," this could make the client look dodgy. A jury finds "selective" memory to be very suspicious, which can hurt your client's credibility. Hence, it is your job as the lawyer to prepare your client in advance for the deposition on what you anticipate will be the pressure points for their case.
Talk through these pressure points so that your client knows how to answer questions that may come up. Often times, the client knows what to say, but struggles with how to say it. Helping them formulate their thoughts and feelings can go a long way and lessen the client's temptation to just say "I don't know."
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6. Don't make objections.
Sometimes, in a deposition, the opposing lawyer may ask questions that make the client feel uncomfortable. In response, some clients try to make their own objections, but that is not their job.
Instruct your client to leave the objections to you as their lawyer. Make them understand that they must answer questions unless you instruct them not to answer.
Assure your client that, if there are objections to be made, you won't hesitate to make them.
7. Don't panic if the lawyer is not objecting.
Prepare your client to not panic if they don't see you objecting. Help them understand that you may not object during a deposition if everything is going fine.
8. Do listen to my objections.
Your client needs to listen to the objections you make.
For example, if you make an objection and you end up explaining that you are objecting based on the fact that your client would be speculating, then your client should probably follow Rule #5 above (not guessing).
But remember that you need to know how the deposition rules work in your jurisdiction when it comes to deposition objections. In some jurisdictions, you may only be limited to the "form" objection and should not explain your objection until asked by the opposing counsel.
9. Do ask for clarification on questions you don't understand.
Make sure to prep your client to ask for clarification or a rephrasing of any confusing questions.
The goal here is to make sure that the client knows what is being asked so that their answer is not taken out of context.
On a similar note, if you are confused (as the lawyer) on the question, then it doesn't hurt to ask for clarification either. This way you know whether you should be objecting to the intended question.
10. Do be short, sweet, and concise in your answer.
Your client needs to be discipline with keeping their answers brief. There is no need for them to provide information that goes beyond the question being asked.
By providing too much information, the client is only inviting the opposing counsel to ask even more questions. Doing so can lead to even longer depositions that can wear down your client.
It doesn't hurt to remind the client of this deposition tip during any breaks.
11. Don't be too short.
I know, I know. This deposition tip seems to be at odds with Tip #10. But the tricky thing here is that if the client's answers are too short, it could hurt the case too.
Make your client understand that when their answer is a short "yes," they should try to explain the reason why that's the case. The goal here is to prevent the other lawyer from eventually taking that "yes" out of context at trial.
12. Don't lie.
This is obvious, but it needs to be said. You don't want your client to have conflicting statements that are used against them at trial.
Therefore, explain to your client that the oath they take on the day of their deposition is the same oath they will be taking at trial. Hence, they need to be speaking only the truth during the deposition.
Prepare for your Closing Argument NOW
Wait, why are we talking about Closing Argument on a post focused on depositions?
Prior to your client's deposition, you need to have a sense of what your Closing Argument will be AND try to anticipate the other side's Closing Argument. In doing so, you are reverse-engineering the case to determine what the pressure points will be for both sides.
If you can anticipate the critical points of the case, then you can get a solid idea of the topics that will be brought up during the deposition. As a result, you can give your client precise advise for handling those topics.
Just as a grandmaster champion chess player thinks 13 to 15 moves ahead, you need to be doing the same as the lawyer. The more arguments you can take away from the other side with a solid deposition, the more chances your client's case will prevail.
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Glad to see that you read up to this point. This means that you are well equipped with the foundational knowledge of the do's and don'ts of preparing a client for a deposition.
Be sure to go through some of the case-specific topics with your client so they don't feel blindsided by any questions. This way, you and your client can be better prepared for any pressure points that may be applied.
Again, the best way to do this is to anticipate both side's Closing Arguments so you know the strengths and weaknesses of the case.
While you may not be able to eliminate all of your client's stress for their upcoming deposition, the above tips and tricks can do absolute wonders for them!