How (Not) to Defend a Deposition—Starring Justin Bieber

Strategic planning is necessary for every deposition. Often, attorneys tasked with defending a deposition fail to take advantage of the deposition preparation session. A poor preparation session, or no preparation session, hinders your ability to prove or defend your client’s case. While the following list is not exhaustive, adhering to these fundamental guidelines will allow for a more successful deposition of your client.

Prep for the Prep Session

• Evaluate the strengths and weaknesses of your client as a witness. If your client has a short attention span and gets irritable easily, then make sure you remind your client that there are real consequences if such bad behavior is captured on the record.
• Think about what opposing counsel hopes to gain during the deposition of your client. If you know that uncomfortable or embarrassing topics will likely be broached during the deposition and are not completely left of field for the lawsuit, then prepare your client to answer so that a foundation is laid for you to object and, if appropriate, terminate the deposition pending judicial intervention.
• Identify potential “anchors” for your client (i.e., anything that will help your client refocus during the deposition and respond to difficult questions effectively).
• Evaluate what evidence you need from your client to prove or defend your case; defending a deposition is not merely a reactive exercise.

Review the Deposition Process

• Explain where the deposition will take place, the videotaping process if it is videotaped, what to wear to the deposition, who will be present, and how to behave.
• Explain that opposing counsel will ask questions, all answers are provided under oath, and, as appropriate, you will make objections. Remind your client to respect the process.
• Review with the witness how deposition exhibits are handled.

Review General Guidelines on How to Be a Good Witness

• Tell the truth.
• Think before you speak.
• Be professional and polite.
• “I don’t know” and “I don’t recall” are acceptable answers, if truthful. Storming out of a deposition is not permitted under any rule of civil procedure in response to opposing counsel simply asking a question you prefer not to answer.

Defending a deposition requires planning. Prepare yourself and your client so that the deposition is successful—and you don’t end up as another cautionary tale.