Deposition Preparation: The Four Simple Rules

Vol. 40 No. 4

The author, an associate editor of Litigation, is the author of Attorney-Client Privilege and the Work-Product Doctrine, Fifth Edition (American Bar Association).

Like all professionals, we lawyers often speak our own special language. We forget that laypeople do not understand the lingo that has become second nature to us.

So, when preparing a client for a deposition—even a fairly sophisticated client who you have reason to believe understands lawyer talk—act as if your client is a naïf. If you do it well, even the most sophisticated client will be grateful and will not feel condescended to or insulted.

First and foremost, don’t assume your client even knows what a deposition is. Be sure to ask whether your client has ever given a deposition and, if so, ask for feedback:

How did it go?

What were you most at ease with?

What did you find the most difficult?

Do you know how your performance could have been improved?

Don’t assume that your client remembers the deposition preparation or that an adequate, let alone a good, preparation took place. Give your own. Hit all four essential simple rules of giving a good deposition. Make sure your client practices them with your guidance. And refer back to them repeatedly as your preparation proceeds. (We’ll cover those four simple rules in a moment.)

If your client has never given a deposition, before you do anything else, explain what the purpose of the deposition is:

The deposition is an opportunity for the other side to ask questions of you, to find out what you do and do not know, and what you would and would not say if you were called to testify at a trial. They will want to hear and lock in your testimony so you can’t surprise them at trial.

It’s also an opportunity for the other side to evaluate how you will come across to a judge or jury deciding the case, and for us to do so, too. We may notice weaknesses in our case that we haven’t yet seen or considered clearly enough. And you may remember or say something you haven’t already told us.

So a lot is riding on this deposition. But don’t make the mistake of thinking that the purpose of this deposition is for you to try to make the case go away [if you are the defendant] or for you to try to get a great settlement without a trial. That’s just not likely to happen, and it shouldn’t be your goal and mindset going in.

Regardless of whether your client has given a deposition before, explain that whatever answers he gives will follow him to court (and beyond). While, technically speaking, the words used will be subject to change, the answers he gives cannot be unsaid.

Explain, as well, what a deposition is not—that, although what your client says at the deposition will stick through trial if there is one, the deposition itself is not trial:

The deposition is not an opportunity for you to convince anyone, especially the other lawyer, about how right you are, how great your claim is, or what a wonderful person or skilled professional you are. Nor is it an opportunity for you to tell off the other side.

When the deposition ends, they are not going to say to themselves, or to us: “How wrong we were; let’s just fold our cards and call off this whole silly business.”

So you can’t think that’s your job. Your job is just to answer the questions posed and only the questions posed. Don’t imagine that anything you say will “win” our case. On the other hand, please understand that something you say may lose the case; it may shut the door on your being able to prevail. In that way, there is an awful lot riding on your deposition.

That introduction will provoke some anxiety (which is good), so continue and explain:

What do I mean when I say that we’re not going to win the case based on what you say at your deposition, but we could lose the case based on what you may say? Let me spell out for you the elements that have to be established and what we have to prove or do at trial to win.

Then take the time to review with your client the causes of action in the case, and all the essential elements and defenses for each of them, and to explain how the facts, as you recount them to your client, prove up what’s necessary. Then tell him this directly, using your own words:

If—in the answers you give to questions posed by the opposing side’s lawyer—you destroy or undermine one of the crucial elements of our case, it may all be over.

Continue:

How is that possible, given what I said that a deposition is not a trial? The opposing side will file a motion asking for the court to rule without a trial and arguing that—in light of your testimony—no trial is necessary or warranted.

It’s known as a motion for summary judgment. In it, they can rely on your deposition testimony. The judge must then decide whether you, in your testimony, have shut the door on your claim or defense. That is why it is so important for you to follow the four simple rules of giving a good deposition that we are about to talk about, one by one.

But, before you tell him the four simple rules, set the stage. Again, do not assume that your client knows what has become second nature to you. Help him to picture what is to come.

In doing so, be blunt and direct; your purpose should not be to put your client at ease. Nothing enhances performance as much as a little appropriate nervousness. Be strict, not accommodating, in the course of your preparation.

Here, help your client by drawing a mental picture of the stage on which his deposition is to take place. Explain that because the deposition is not a trial, it will not take place in a courtroom in front of either a judge or a jury. It will instead take place in the opposing lawyer’s office. Why? Because the lawyer who asks the questions gets to designate that the deposition will take place on her home turf. “When it is our turn to take the deposition of the opposing side, it will be at my office,” you can say.

Explain who will be there and why, and don’t forget to tell your client about the court reporter and any videographer. You may have to explain why your client’s best friend, significant other, or emotional-support animal cannot attend, unless, of course, opposing counsel is willing to allow it. How likely is that?

What should you tell your client to do at his deposition?

Do a Dry-Run

First and foremost, to tell the truth. This may be a good opportunity to do a dry-run of the most likely questions so he can rehearse his answers to be comfortable with how the story is to be told. Be sure to ask the top five questions you least want to hear at a deposition or at the trial, and be sure that you and the client know what the answers will be when those questions are asked.

Some lawyers like to video-record a prep session so their clients can watch their performances. You may choose to do so, but keep in mind that most people who are not professional performers get rattled from watching playbacks of themselves. And satisfy yourself that the videotape won’t be discoverable for rebuttal purposes, even if you think you have a good chance to keep it—as work product—from being discovered generally.

If you erase the videotape after it is made and watched by your client, the fact that it was made and erased is definitely discoverable. A good lawyer could have a field day in front of the jury with that kind of evidence, which should be irrelevant.

Having set the stage, now you’re ready. Beyond telling the truth, there are only four simple rules for giving a good deposition. They are easy to explain to any client, and—even better—they are easy for any client to understand and follow, though it may take some practice. Unlike the 20-plus pages of deposition dos and don’ts that some law firms provide their clients who are about to be deposed, these four simple rules are easy to understand, easy to remember, and, with practice, easy to follow:

Rule 1: Listen to the question.

Rule 2: Be sure you understand the question.

Rule 3: Think about the answer.

Rule 4: Express the answer in the shortest and clearest manner possible.

This is a good opportunity to rehearse the preparatory questions and answers again, to be sure that your client understands and can follow the four simple rules.

If your client starts to answer a question before you have completed the question, indicate that violates Rule 1. And if Rule 1 is broken, the rest will be a shambles. Point out to your client that he is not a mind reader. He doesn’t know how the question will be formulated until after he has heard it fully asked.

If your client answers in a way that has little or nothing to do with the question, or otherwise is not responsive, point out that Rule 2 has been broken. You can then elaborate:

This is not a multiple-choice question on a college test, where you have five choices and a 20 percent chance of selecting the right one. You cannot answer a question if you have not understood it. So you had better be sure you do understand it. If you do not understand the question, you must tell the questioner that you do not.

You have every right to have the lawyer explain what you have not understood. If you answer a question, you will be assumed to have understood it fully. We will not really be able to fix your misunderstanding later on, after the deposition, when you tell me what question you thought you were answering, even though it was never asked.

Explain to your client, particularly if he is a professional or an expert witness, that it is not his job to educate the opposing lawyer or to help her to ask sensible questions. He is there just to answer the questions, once he is sure he has understood them.

Explain to your client that the deposition is not a knowledge exam. If the client does not know the answer to a question, he is not to guess, to speculate, to help the lawyer refine the question, or to try to accommodate the lawyer.

Tell your client that he need not be concerned about appearing ignorant or stupid. If he does not know or remember something, it is perfectly acceptable to say so. Indeed, it is the only correct answer. There is nothing wrong with answering “I don’t know” or “I don’t remember,” provided those are truthful rather than evasive answers.

If your client has a propensity to answer questions too quickly, he is not giving himself time to abide by Rule 3. He is not thinking about his answer before he blurts it out. Try this: Tell him to pause for at least five seconds before he starts his answer, to be sure he is abiding by Rule 3.

Some people engage their mouths before their brains are in gear. They think as they talk. Some cannot think unless they are talking. Instruct your client that in a deposition, that is a cardinal sin. You must show him just how dangerous it is. With each long-winded, complicated answer that your client gives, make him answer again, after he has stopped to give himself a chance to think of the complete answer before he starts to speak.

One high-ranking official at a Fortune 500 company managed this exquisitely. He even considered and deliberated silently on his answers to the simple questions—“What is your name?” “Where do you work?” “What is your position there?” The lawyer taking the deposition was thoroughly discomfited; the deposition was over in record time, and the deponent had made clear by the manner in which he gave his first several responses that he could not be manipulated, trapped, or fooled.

Answer Succinctly

Rule 4—to give a succinct and simple answer—is as important as the first three rules. The more your client rambles, the more room there is for confusion, for error, for misunderstanding, for things that have to be (but may not be able to be) cleaned up later.

If your client volunteers answers to questions that were never asked, he opens endless doors to be explored and countless areas that the questioner may never even have considered, but for your client’s rambling. Each volunteered answer, each seemingly irrelevant ramble, is an open invitation not only to prolong the deposition but also for potential trouble.

In a deposition, brevity is indeed the soul of wit, and the less said, the better. Period. If the question is “Was it raining?” the appropriate answer is “yes” or “no”; not “It was raining cats and dogs; the pavement was slick; my brakes had no opportunity to engage even though I was only going 10 miles an hour.”

If you can get your client to understand the four simple rules, subscribe to them, and follow them, then the deposition will go better and more smoothly. Any commentary you may wish to add can readily be appended as exegesis to those four simple rules and will then be more likely to be remembered and followed by your client.

Finally, explain your role at the deposition. Your client may well be surprised to learn that there is very little you can or should do during the deposition to defend him. You must explain to him:

I can’t object if a question seems unfair. I can’t object—just so you can try again, to give a better answer—if the question elicits a troublesome answer that you gave without thinking. Before you give an answer, I can’t take you out into the hallway for a private chat and tell you how you should answer.

I can object on a variety of technical grounds—about the form of the question, for example, or about a failure by opposing counsel to lay a proper foundation—so that opposing counsel has an opportunity to correct the legal problem, but that is about it. Anything I can say during the deposition is typically so technical and so limited that you may not even understand it. The key is this: When it comes to the answer you will give once we are in the deposition, you’re on your own.

Although many lawyers still try, some lawyers still succeed, and a few lawyers still succeed with impunity, you cannot be an obstructionist. You can’t coach your client on how to answer a question or stop him if he is rambling.

Helping your client to know how little you can do during the deposition reinforces your message to him that his best defense is in his own hands and that even if just for his own sake, he should abide by the four simple rules.

He may ask, “If you can do so little to defend me, what can you do?”

You’ll explain that if you think that the questions asked and the answers given have not provided a true picture of what happened, you—as his lawyer—will have the opportunity and the obligation, before the close of the deposition, to pose your own follow-up questions to him, while still on the record, through which to give a clearer, more complete, and more accurate picture of what did occur.

Tell him that, in answering your questions, he must apply the very same four simple rules: Listen to your entire question, make sure he has understood your question, think about the answer, and state his answer briefly and succinctly.

You also can tell him that if he fails to abide by the four simple rules, you may pause the deposition when no question is pending, take him out into the hallway, and remind him of the four simple rules he is busily breaking. Tell him that if you do so, opposing counsel will object and argue that you are coaching your witness during a deposition, which is improper, and that it will not look good for you on the record.

Explain to your client that you will both have the opportunity to read the deposition transcript when it is ready, usually a week or so after the deposition. Tell him that, of course, both you and he will take pride in the clarity of his good short answers and will feel bad about those answers he may have, to a lesser or greater extent, botched.

Teach him to understand that while he will have the opportunity to think better of what he may have blurted out and wish to change it on the errata sheet, the ritual of reading and signing a deposition transcript typically goes no further than correcting specific words of the questions and answers that the court reporter may have misheard, misunderstood, or simply mistyped. The client should not plan to rely on the errata sheet to provide the opportunity to fix his own snafus.

Don’t overlook a brief discussion of your client’s attire. What constitutes acceptable business attire varies, but general rules against overly casual clothes (flip-flops, spaghetti-strap shirts, joke ties with pinup girls or clown faces) make good sense. Don’t just tell your client what appropriate attire is. Experience teaches that you should be sure you know what your client intends to wear, and approve of it.

Regardless of how much else you may choose to cover, complete your preparation by bringing your client back to the simplest of instructions. While preparing your client to give an effective deposition amounts to informing him fully about all aspects of the process, in the end be certain he really understands and is ready to follow the four simple rules. Everything hinges on that.

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