I recently took a deposition in a case in which I represented a homeowner in a dispute with a home improvement contractor. Opposing counsel arrived about 20 minutes prior to the start of the deposition—his client, the deponent, had arrived about ten minutes earlier—and he asked to meet privately with his client, whom he said he had never met before. I showed them to a room where they met for 15 minutes. They emerged, and we started the deposition.
The deposition was a joyous foray through the facts—at least for my client and me. For the deponent it was nightmarish. He used the deposition as an opportunity to pontificate about his position in the case, intermingling his polemics with jaw-dropping lapses of memory, inconsistencies, and diversions from his interrogatory answers.
The case settled about ten days later, on terms highly favorable to my client.
Amazingly, this scenario occurs far too often. Counsel lulls the client into believing the deposition to be a distraction, a mere weigh station on a road that will ultimately lead to settlement, trial, or arbitration. The client walks into the deposition woefully unprepared and becomes the unwitting victim of laziness, or perhaps something worse.
If a substantial percentage of all civil actions end up in settlements or summary determinations, it stands to reason that the deposition is pivotal in fashioning the destination of the case. Yet, too many lawyers soft-pedal the deposition preparation process. This seems profoundly paradoxical when you consider the fastidiousness with which we approach trial preparation.
The approach to deposition preparation should therefore take into account the importance of the deposition in determining the outcome of a case. This approach begins with giving the client a fundamental understanding of what the deposition is designed to accomplish. Prior to the deposition, the client needs both to understand and be comfortable with the following:
- Depositions have a predictable “environment” and “infrastructure.” Explain where everyone sits in the deposition room and what their respective roles are. Go over the ground rules (e.g., stipulations regarding objections, when can the client take a break, under what circumstances are you as counsel permitted to speak).
- The deposition is an examination over which the client has little control. Yes, you will be there to preserve the record, limit inappropriate lines of inquiry, and protect the privilege, but to a large extent deposing counsel will be able to dictate the cadence and substance of the examination.
- The process will involve extraction of facts, many (if not most) of which will require the client to make admissions that are against his or her own interest. Clients need to be assured that making such admissions isn’t fatal to their position. Rather, it’s a time-honored method for narrowing the issues in the case.
- The client’s obligations are fairly simple: answer the questions (and only the questions) that are asked of him or her. This needs to be emphasized repeatedly. Since the client is not appearing voluntarily (unless it’s a deposition to perpetuate his or her testimony owing to impending death or unavailability at trial), the client shouldn’t be “donating” anything to the proceeding.
- The client must tell the truth. That is non-negotiable. The client must understand that if he or she strays from the truth, the entire house of cards may come tumbling down, if only because opposing counsel has done his or her homework and will be able to catch inconsistencies if not outright falsehoods.
- The deposition is not an argument or a debate. The client must understand that there are appropriate times to argue the case—at mediation or in closing argument at trial—but that the deposition is not one of them. Arguments and debates through testimony at depositions almost always end badly.
- The client can be comforted in knowing that concise, truthful answers are the best antidote for relieving or reducing the pain of the deposition. This can be far more understandable in theory than it is in practice, if only because a deposition is antithetical to all conversational norms. In ordinary conversation we would never hesitate to interrupt one another and speak ad nauseum about one subject or another. The client needs to understand that the deposition runs contrary to these principles. When I tell clients that many deposition questions can be answered with a simple “yes” or “no,” they seem somewhat surprised; in many instances their response is “How is that possible?” My response is something like this: “Your job is to answer the questions, not explain anything (unless a question calls for an open-ended response). If you go beyond ‘yes’ or ‘no,’ you are giving the opposing attorney ammunition to fire more questions at you. The shorter your answers are, the shorter the deposition will be.” In this regard a mock examination of the client is not simply helpful, it is necessary in getting the client to limit information to only the minimum necessary to answer a question.
- Because most depositions will occur only after service of written discovery, the client needs to review and commit to memory the substance of any prior responses, as well as any other statements made under oath (e.g., affidavits). You should identify the interrogatories that are most likely to lead to questions and frame for the client the questions that will most likely be asked about them.
- To best assist your client, in preparation for a pre-deposition meeting you should sort through all the documents that have been produced by either party in discovery and attempt to ferret out the documents that have any chance of being the subject of inquiry. The client should then take time to review these documents. This is also an appropriate time to categorize the anticipated lines of questioning for purposes of the mock examination.
- You should also “dress rehearse” the procedure by which the client responds to objections, both as to form (or other non-privileged objections) as well as privilege. Because objections can sometimes “derail” a client’s train of thought, the client should understand that it’s perfectly acceptable to ask that the question be asked again.
- A deposition is as much a listening exercise as it is a speaking exercise. Deponents who take the time to listen to the question and then take the time to formulate the answer in their mind before verbalizing it tend to acquit themselves better at deposition than those who would rather “pounce” on a question and answer it reflexively. If the deposition isn’t being videotaped, there is no temporal urgency to answer any question. The client should clearly understand this.
- The client should also understand that “I don’t know” and “I don’t remember” are acceptable answers, provided that they aren’t used as “crutches” to avoid confronting the truth. Where cases are factually complex, it is nearly impossible for a deponent to have mastery of all the operative facts, especially those that are inconsequential to the case. Guessing at answers, however, is never good (though a distinction can be drawn between a flat-out guess and a “best memory”).
- There may be instances in which clients realize that they have answered a question incompletely or incorrectly. Answers may be amended at one of three points: (a) during opposing counsel’s exam; (b) during your own exam; or (c) in the errata sheet. My preference is to have the correction made as close to the point of the original testimony as possible; this blunts the ability of opposing counsel to claim that the answer was the product of a post-examination review of the testimony (or the transcript) with counsel. The errata sheet should never be used to make substantive changes in testimony. Depending on the jurisdiction in which the case is heard, such changes may even be prohibited.
- Clients need to know that they are not being left out on the proverbial island. You will be there to regulate the process, and although conferring with the deponent between questions is looked on unfavorably, there’s nothing to prohibit coaching of the deponent during a break. I don’t like having clients in the chair for more than about 75 minutes without the luxury of a break, and I remind clients before the start of the deposition that they should feel free to ask for a break to use the bathroom, make necessary phone calls, or send texts or e-mails relating to work or family commitments. There’s nothing wrong with staking out an inconspicuous place to chat privately during breaks (the bathroom is not an advisable venue).
- Finally, consider a videotaped mock deposition or the use of a streamable video tutorial that that the client can view both before and after your pre-deposition meeting. This affords the client the opportunity to acquire “muscle memory” of the techniques for properly answering questions.