YourABA May 2013 Masthead

3 golden rules of deposition preparation

“Pause before answering” is the first of three golden rules of deposition preparation shared in the new Section of Litigation-Center for Professional Responsibility CLE, “The Best Defense Is a Good Offense: How to Proactively Prepare Your Witness for a Successful Deposition.” According to panelists, the pause serves two purposes — it allows time for objections and forces the witness to think before he or she leaps.

The second golden rule: “Only answer the question that is being asked.” A deposition is not a normal conversation, and speculation is not the witness’s friend. In normal conversation, it is human nature to offer information to carry the story along. “You’d rather be somewhere else. The more information you give the other attorney, the longer you’ll be there,” said panelist Richard Amador of Sanchez & Amador in Los Angeles.

“Tell the truth” is the third golden rule. Impeachment and perjury concerns can enter the case if this is not done. Always start and end each discussion about the deposition with this subject. Under stress, some clients get creative with facts. Our memories are horrible, and it is natural to make up things to fill in the gaps.

“Although most depositions end up in a lawyer’s file and never see the light of day, many others have been responsible for losing cases,” said panelist Eric Hoffman of Barclay’s Capital.

Among other points in the CLE:

  • Privilege should apply in deposition preparation.
  • The two key objectives of deposition preparation should be minimizing inconsistencies and inspiring confidence in the preparer as a lawyer (rapport goes a long way).
  • Don’t forget to ask your client about communications outside the normal course of communication and documents, such as Facebook.
  • If a document is used to refresh a witness’s recollection, that document is discoverable. If a summary chart is prepared, that also is discoverable.
  • In a few jurisdictions, you cannot communicate with a client after the deposition starts. In most jurisdictions, you can confer with your client unless a question is pending, the exception being when it’s a matter of privilege.
  • You want to avoid surprises, and one way is to ask the client in multiple different ways about key areas of the case, trying to confuse him or her, but only after you have established trust first. (This is also a good time to acquaint your client with lawyer tricks, such as embedding questions with false assumptions, or speeding up the questions.)
  • In-house counsel, senior executives, top salespeople and other high-level performers are often the least prepared heading into a deposition; they think they can handle it. This can shred a case.
  • Some lawyers have used objections as ways to communicate with their client, and some of those lawyers have been sanctioned. But train your clients to know that if you ask if they want to take a break, it’s because you think they need a break.

And when do you question your own client in a deposition? Only if his or her previous testimony is going to lose the case.

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