Deposition day can mean stress, anxiety and uncertainty for your client. The wrong attitude or the wrong approach to a client’s deposition on the attorney’s part can be really harmful to the client’s case. Therefore, preparing your client for their deposition is an essential part of managing their case. Without adequate preparation, the wrong answer can be given to a deposition question and your client can destroy their case. While there are many different ways to prepare your client, there are simple, tactical approaches to prepping for a deposition that can be highly beneficial to your client and the outcome of their case.
As the client’s attorney, ensuring you are fully prepared for their deposition is crucial; it would be unproductive for the attorney to prep the client for a deposition unless the attorney was prepared for the opposition. Before meeting with the client, you should completely understand the facts, documents, key issues, claims and likely defenses of the case. The only way to adequately prepare your client, is to know what questions the opposition is going to ask and discuss suitable answers to these inquiries.
PREPARING YOUR CLIENT
The biggest mistake an attorney can make is not prepping a client for their deposition ahead of time. The main preparation session should never take place the day before or the day of the deposition; 15 minutes prior to the deposition is inadequate and unproductive. Your client is already nervous and will not be able to fully understand and integrate the plans for their deposition. It is difficult for the client to process all of the information presented in anticipation of the deposition. Similarly, you should not prepare your client more than a week in advance of the deposition because clients will likely forget what you went over in anticipation of the deposition. It is recommended that for every hour of deposition questioning, you should spend 2 hours of prep time with your client. However, if a deposition is expected to last all day, the 2 full days of recommended preparation time may be adjusted to fit the parties’ schedules.
On client preparation day, you should discuss the facts and documents of the case as well as strategies and an approach to answering deposition questions. Your client will be nervous regardless of their past deposition experiences and overall personality or demeanor so anxiety is to be expected. You should make an effort in ensuring your client is comfortable and attempt to keep them calm; possibly offering water or a chance to use the restroom before you begin. There are many ways to help keep your client feeling calm and comfortable on deposition day as well. Letting your client know who will be present at the deposition ensures there is no shock or surprises on that day affecting your client’s ability to focus on the opposing counsel’s deposition questions.
Advising a client on what they should wear on deposition day ensures they are properly dressed and looking and feeling confident. A deposition is a trial run for a possible, future trial and your client should be dressed accordingly. Men should be wearing a suit and tie or at the very least a blazer or sports coat and women should be in a dress suit, preferably a pencil skirt and blazer.
Discussing how long the deposition is going to last is a way to give your client a warning prior to that day to expect that the deposition may take several hours or all day and to plan their day around it. You should make it very clear to your client that you have absolutely no control over how long the deposition takes.
Practicing the admonishment or statement that the client is under oath and must remain truthful can help your client on deposition day. When the words are read at the beginning of the deposition, your client will be familiar with the oath and it will not be the first time they hear it. Some clients get nervous the first time they are told they must tell the truth under penalty of perjury and practicing with your client prevents that from happening at the very start of the deposition.
Lastly, preparing and even practicing the toughest questions your client faces at the deposition can help prepare the client for when the questions are posed by opposing counsel. For particularly sensitive clients, you may want to ask a fellow attorney or even an attorney at another firm to come in and mock cross-examine your client to give a true sense of what will happen at the deposition and avoid the shock and awe reaction of the first time the questions are posed.
Having a strategical approach to answering deposition questions ensures your client does not say the wrong thing and cause serious consequences to their case. Any preconceived goals of the deposition that the client has must be dispelled of immediately. It must be made very clear that regardless of their demeanor, opposing counsel’s whole plan and purpose is to undermine the client’s credibility and your client must be prepared to strictly follow your planned approach to opposing counsel’s questions. You must advise your client that an oath to tell the truth means you cannot lie under oath under penalty of perjury. However, explain that telling the truth does not mean trying to help the opposing side understand the case; your client’s only purpose at the deposition is to answer the questions posed, truthfully. Additionally, your client must understand they are not to become argumentative or adversarial during the deposition either.
Your client’s approach to answering deposition questions is easy: do not volunteer information! This can be a very difficult concept because some clients are naturally talkative and chatty and some are spewing out information to anyone who listens. You must explain that the only proper way to answer a deposition question is truthfully and as short and simply as is necessary to be truthful and accurate. There is an easy approach to not giving away too much information that must be understood by every client before attending a deposition: if you are asked a yes or no question, a question that can be properly answered with the reply of a yes or a no, you should always answer with either yes or no. Period. For example, if opposing counsel asked you if you know the time, you would answer yes. Just yes. You would not answer by giving the time; the client should then wait for the next question.
The 5 Perfect Answers to Deposition Questions
As part of your client’s strategy, you should explain and ensure they fully understand the 5 perfect answers to deposition questions: (1) yes, (2) no, (3) I don’t know, (4) I don’t recall, and (5) can you please rephrase the question. These 5 answers, and these 5 answers alone, should be used by your client whenever it is truthful and accurate to do so.
As discussed above, any question that can be accurately and truthfully answered with a simple yes or no should be answered with the single word ‘yes’ or ‘no’ and you should advise against offering anything more. The answer ‘I don’t know’ means I never knew, I was not there, I did not see it, I do not know the answer and will never know, I cannot speculate. However, ‘I don’t recall’ means that sitting here at this deposition, I cannot answer the question right now but my memory could be refreshed. You must never allow the phrase “I don’t exactly know,” or “I don’t specifically know” because your client will be probed on the point in which they may generally know and force speculation. The last answer ‘can you rephrase the question’ means the question was unclear or you do not understand part or all of the question; and be very prepared for the reply “What part of the question is unclear to you?” when using this answer.
It is always advised to be fully prepared for the deposition yourself before attempting to prepare your client. Your attitude and approach is essential to the success of your client at their deposition. The biggest mistake you can make as an attorney is not to prep or to inadequately prep your client before their deposition, so don’t be caught making that mistake!
How To Earn CLE Credit on this Topic
For additional information on this topic, Attorney Credits offers a course titled “How To Prepare Your Client for Deposition.” The course is available for CLE credit in the following states: Alabama, Alaska, Arizona, California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Illinois, Indiana , Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Nevada, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Oregon, South Dakota, Texas, Virginia, and Washington.