Proactive defense strategies are essential to a successful defense of a deposition. Often, attorneys tasked with defending a deposition fail to take advantage of the deposition preparation session. A poor preparation session – or, even worse, no preparation session – may hinder your ability to prove or defend your case. Following these simple tips will allow for an efficient and effective deposition preparation session with your client, and, more importantly, a successful deposition.
Preparing for the Preparation Session
A successful defense of a deposition begins weeks before your client is ever sworn in by the court reporter. You must prepare yourself before you prepare your client. First, evaluate your client as a witness. During your client interviews, as well as the time spent working with your client to respond to written discovery, it is likely that you have evaluated the sophistication level of your client and what type of witness your client is going to be (e.g., nervous, soft-spoken, talkative, etc.). Use these assessments to plan your preparation session. For example, if your client has never been deposed before, then it will be necessary to spend additional time alleviating your client's anxiety by explaining the process, who will be present at the deposition, and how the client should conduct himself.
Second, think about what opposing counsel hopes to gain during the deposition of your client. Make two lists: a list of the key points that your adversary needs to make, and a list of the hardest questions that your client will face. Anticipate potential lines of questioning, as well as documents that may be used during the deposition. Create an outline and binder of documents that you may use to organize your preparation session with your client.
Third, regardless of the client's sophistication level or personality type, it is helpful to identify potential "anchors" for your client. Anchors can be anything that will help your client refocus during the deposition and respond to difficult questions effectively. If your client prepared various documents that are likely to be sources of questions from opposing counsel, then you must review those documents so that the client's testimony is consistent with them. Your client may also refer to those documents during the deposition, instead of trying to recall what he was thinking at a certain time.
Also, you will likely be able to anticipate certain questions from opposing counsel. Review with your client his responses. Typically, you will be able to identify cues that will help your client remember what was discussed during the preparation session, and respond as best as possible while under the stress of the actual deposition. Identifying for your client some helpful tips, reminders and key phrases or documents will help to reduce your client's anxiety, as well as to provide a clear record.
Fourth, evaluate what evidence you need from your client to prove or defend your case. Defending a deposition and providing deposition testimony is not merely a reactive exercise. Rather, identify the facts necessary to prove or defend your case and focus on those facts to which your client can testify. For example, if you know that you will be filing a motion for summary judgment on some or all of plaintiff's claims, then determine now, prior to the deposition, what evidence you will need to draft a successful motion. Educating your client on these topics, and reviewing potential lines of testimony in advance of the deposition will make the future prosecution or defense of the case easier.
Fifth, if other witnesses have been deposed, consider what they have said about your client, e.g., what he did or did not do, at what was he present, what he said. In litigation, consistency or inconsistency with both documents and other testimony is important.
Finally, evaluate the scheduling of the preparation session. Identify the best time to meet with your client, as well as how long you anticipate the meeting will last. Often, depositions are an inconvenience to clients. They must take time away from their jobs, family and other obligations. Therefore, you want to make sure that you give them enough advance notice of the deposition and the preparation session so that they may schedule accordingly. This also goes a long way in building rapport with your client because it demonstrates that you are respectful of their time.
Typically, the day before the deposition is the best time to schedule a preparation session. This ensures that the information is fresh in your client's mind, but also provides an evening for them to process the information and identify any questions or concerns that can be addressed prior to the deposition. The amount of time necessary to prepare a client for deposition varies depending on the nature of the case, the client's sophistication level, the documents to be reviewed, and, of course, everyone's schedules. Regardless, advance planning will allow your client to block off sufficient time to meet with you and focus on preparing for the deposition.
The Preparation Session
Once the preparation session is scheduled, the first part of any thoughtful client meeting is providing your client with a roadmap of the meeting. A roadmap of the deposition preparation session, like any client meeting, helps you and your client stay organized and efficient. Typically, an effective preparation session includes the following topics: (1) if necessary, a review of the scope of your representation, and an explanation of the attorney-client privilege, (2) a review of the deposition process and guidelines to a successful deposition, including analysis of relevant documents and a mock cross-examination, and (3) identifying any areas of concern or discomfort.
Scope of Representation
At the outset of the preparation session, it is helpful to remind your client that any communications between you and your client are privileged. This will aid in a candid exchange and allow for a more productive meeting.
Deposition Process and Guidelines
Depending upon your client's prior litigation experience, it may be helpful to explain the discovery process, and the purpose of a deposition. For example, explain where the deposition will take place, the videotaping process if it is videotaped, what to wear to the deposition, and who will be present. Then explain that he will be placed under oath, opposing counsel will ask questions, and, as appropriate, you will make objections. Also review with the witness how deposition exhibits are handled.
Once your client is comfortable with the procedure of a deposition, review the following guidelines. While this list is not exhaustive, and should be tailored to fit your case and client, it identifies some of the key points that are almost universally applicable.
- Tell the truth
- Speak audibly
- Talk slowly
- Think before you speak
- Do not volunteer information; answer only the question that is asked
- Be professional and polite
- Take breaks as necessary (usually one per hour)
- If you do not understand the question, then ask for clarification
- Do not speculate
- "I don't know" and "I don't recall" are acceptable answers, if truthful
- Do not cut yourself off from further testimony
a. For example, if asked for a list (e.g., people, documents, job duties), testify to everything you recall; but, do not testify that your list is exhaustive unless you are certain - Beware of leading questions (opposing counsel is trying to testify for you):
a. "Isn't it true that . . . ."
b. "Would it be fair to say that . . . ."
c. "Am I correct in understanding that . . . ." - Stick to your answer
a. "As I just said . . . ." - Documents
a. Review the document
b. Pay attention to the date, author(s), recipient(s), and signatory, if any
c. Evaluate whether the document is a complete copy
d. Remember that e-mail chains are chronologically in reverse - Do not bring anything with you to the deposition, unless specifically advised to do so
Evaluate Areas of Concern
Once your client is comfortable with the process and you have reviewed the guidelines, relevant documents and engaged in some mock cross-examination, ask your client whether there are any issues or topics with which he is not comfortable. Often, the deposition preparation session can be overwhelming for the client. Allow your client a few minuets to digest the information and reflect on whether there is anything that he would like to review before the end of the meeting. Remind your client that the goal of the preparation session was to be more uncomfortable and challenging than the actual deposition. Then provide some encouragement before sending your client on his way.
The Day of the Deposition
It is helpful to ask your client to arrive thirty to sixty minutes before the scheduled start time. This extra time will allow your client to get acclimated to the environment, calm his nerves and review anything that may be weighing on his mind following the preparation session. Remind your client that a deposition is not an endurance exercise. There will be breaks during which he may consult with you off the record. If allowed in your jurisdiction, you may use these breaks to remind your witness of topics that were discussed during the preparation session, including basic deposition guidelines, as well as when it may be appropriate to testify proactively to helpful facts.
Conclusion
An effective deposition preparation session requires planning. Take advantage of this opportunity by preparing yourself and your client so that the deposition is successful.[1]
[1] The Power Prep: Effective Preparation of Your Client for Deposition, first appeared as an article in the ABA's Pretrial Practice & Discovery newsletter in February 2013. Ms. Rhinehart has also lectured on deposition strategies for various CLE seminars and podcasts since publication of her article.
