Litigation

Plaintiffs' Lawyers: How to Prepare for Your Client's Deposition

By Evan Schaeffer

Your client's deposition can make or break a case. Because of its importance, always plan to do too much preparation, rather than too little.

Here is a suggested procedure:

• A few weeks before the deposition, send your client a letter with pre-printed materials explaining the deposition process, what you expect the client to do, and what the client should bring to the deposition (e.g., requested documents).
• Meet with the client, not once but twice. The first meeting should take place a week or so before the deposition. The second meeting should take place the day before (or the same day).
• Plan to spend at least two hours in the first meeting. Here's a checklist of points to cover:
  • The purpose and use of the deposition ("it's the other lawyer's chance to hear your story. Once you tell him, you won't be able to change the details later");
  • The layout and procedure--what the client should wear, who will be present, where people will sit ("I'll be sitting right next to you"), how the deposition will begin, the court reporter's role, etc.;
  • How to answer questions ("listen to the question, then answer only the question that was asked"; "don't volunteer"; "if there is silence, don't think you have to fill it up"; "'I don't know' and 'I don't remember' can be acceptable answers, if true"; "the deposition isn't a test to see if you remember dates, just do the best you can");
  • What your client has said previously about the facts of the case--interrogatory answers, letters, documents, medical records;
  • What others have said about the facts of the case as it pertains to your client's testimony;
  • How you expect the questioning to go; 
  • Common pitfalls--arguing with the opposing lawyer, exaggerating small details. (Credibility and a good demeanor are keys to a successful deposition.)
  • Do some role playing in order to give your client confidence that he or she will be able to get through the deposition;
  • What your client should do when you object ("give me a chance to object before you answer, and listen closely if I make an objection");
  • Areas that you think will be a problem for the client;
  • Areas that are important for the case that you think will be asked (for a plaintiff, "What are your physical complaints?" and "What were you once able to do that you can't do now?").
• In the second meeting, ask your client if he or she has questions, then do a review of the first meeting, with an emphasis on how to answer questions, particularly problem questions that you anticipate will be asked.

An ill-prepared client can wreck a case. When it happens, it's usually the lawyer's fault.

Don't just prepare for your client's deposition--overprepare.

Related posts:

1. "Preparing Witnesses for Depositions: Here's a Step That's Often Forgotten."

2. "Defense Lawyers: How to Prepare Witnesses for Depositions."

3. "Testifying at Trial: Don't Let Your Client Make These Disastrous Mistakes."

Full post as published by The Illinois Trial Practice Blog on May 05, 2009 (boomark / email).