Preparing clients for deposition is one of the most important tasks involved in my representation of victims of personal injury and medical malpractice. My clients are ordinary people who typically have no prior litigation experience. It’s therefore no surprise that the first thing I hear from most regarding their deposition is how nervous they feel. This is natural and as their attorney, it’s my job to put them at ease about the process. It’s also my job, however, to ensure that my client understands just how important their deposition is to the outcome of their case.
Putting the Client at Ease
A nervous deponent is very unlikely to have a good deposition. Preparation, therefore, begins with putting the client at ease. I always begin my deposition preparation by explaining exactly what a deposition is and what the client should expect. I strive to make sure my clients understand all aspects of deposition procedure, no matter how routine, because the worst thing that can happen is the client gets caught off guard. Not only can that lead to unfavorable answers, but it could also hurt my credibility, as the client may blame me for putting her in an uncomfortable situation with no advance warning.
After explaining the procedures, I always reassure my client that, no matter what happens, mistakes will be made in the deposition. Opposing counsel will ask a bad question, I will miss an objection, or she will give a poor answer. It’s important for the client to understand this, otherwise she will be second guessing herself after every answer, which usually leads to a bad performance.
Making a Good Impression
Once the client is at ease with the process, it’s time to let her know what the goal is, and it’s simple: make a good impression. The deposition is the first (and sometimes last) opportunity for defense counsel to size my client up and determine the value of her claim. That’s why how my client answers questions is just as important as the answers she gives. With that in mind, here are the “rules” I tell my clients to follow during their deposition:
Rule #1: Be Like-able.
There is nothing more important than a defense attorney and the insurer liking your client because that usually means that a jury will like your client as well. Jury like-ability is important to getting cases resolved short of trial.
So, sit up straight, smile and be friendly. Not only will this allow the client to (hopefully) build credibility with defense counsel, but it can also lead to a favorable impression with the jury. Most depositions today are videotaped, and that means that even the perfect answer to a question can be ruined with the wrong facial expression or hand gesture. The court reporter can’t take down body language, but the video camera will, and if the case goes to trial, the last thing a witness wants is the jury to see her rolling her eyes at defense counsel or answering his questions in a condescending or rude manner.
Rule #2: Never Lie.
This rule is so basic it doesn’t require too much explanation. Lying will torch a plaintiff’s credibility, and defense counsel will not assign much value to a case when he knows the plaintiff isn’t telling the truth. Be honest with me and I can prepare a client for most things that will come in the deposition and be honest in your deposition because you are under oath and dishonesty never, never helps you.
Rule #3: Approach Each Question the Same Way.
Finally, the client must understand how she should approach each question being asked. The following is the framework I give my clients on how they should approach each question: First, make sure that you listen to the entire question, and then pause for at least two seconds prior to answering. This will allow you to fully process the question, and will also give me time to make any objections on the record. Second, make sure, after you’ve processed the question, that you understand what the question is asking. If you don’t understand, then ask for clarification. Third, assuming you understand the question, only answer if you know the answer. Never guess or speculate. Finally, only answer the question asked. So, if defense counsel asks what day it is, the answer is “Monday” not “Monday, which is the day that I go to Dunkin Donuts before work and the day that I have lunch with my friend.”
Although this is a basic framework for deposition preparation, following these steps should allow for a successful deposition and, with any luck, a successful outcome to your case!