How to Prepare Your Client for a Deposition

Let’s talk about how to prepare your client for a deposition. As your client’s lawyer, you can’t just send your client into a deposition cold. That’s a recipe for disaster. Preparation is the key to getting your client through a deposition successfully. The following are my suggestions on how to fully prepare your client for a deposition.

1. Meet with Your Client to Prepare for the Deposition

The first thing to do is schedule a meeting with your client. The worst day to meet with your client is on the day of the deposition. That’s way too late, it’s not much different than sending your client in cold. I also don’t like the idea of meeting with your client the day before the deposition. I want my clients to rest and relax the day before the deposition so that they can maximize their focus and energy levels for the deposition itself. 

The preparation session itself can wear out some clients, so don’t do it the day before. It also doesn’t give your client enough time to process what you discussed in the preparation session. I want my clients to have time to ponder and ruminate about what we discussed and how they’re going to answer anticipated deposition questions.

My recommendation is to conduct your preparation session anywhere from a minimum of two days to a maximum of one week before the deposition. This gives your client enough time between the preparation session and deposition to rest up and reflect on how they’re going to answer questions. But it also doesn’t let too much time go by so that they start forgetting what they learned in the preparation session.

You should always meet with your client in person to prepare for a deposition, unless there is a really good reason why you can’t. For instance, if your client is too far away, such as out of state or out of country, it might be impracticable to meet in person. But under most circumstances, if your client isn’t too far away from your office, meet in person. 

As your client’s lawyer, I think you should always be looking for opportunities to meet with your clients in person. Meeting in person is a great way to build your relationship with your client, get to know them better, show your client that you care deeply about their case, and to show that you’re willing to go the extra mile to get the best results possible.

If meeting in person is not feasible, the next alternative would be to do a videoconference. That’s not a bad option, but it’s still not as good as meeting in person. Preparing over the phone is the worst option and should be avoided at all costs. At the very least you need to be able to see your client’s behavior and body language when they’re answering questions, which is impossible if you’re on the phone.

2. Explain the Basic Mechanics of a Deposition

Discuss the basic mechanics of how the deposition works with your client. Tell them what to expect, what time to arrive, what clothes to wear, how they should behave, when it’s going to start, how long it might take, issues like that. Explain how the other lawyer is going to ask questions and that it will seem like a conversation, but the other attorney’s objective is to try to get damaging material out of them, so your client should never let their guard down. Tell your client that their performance is being evaluated with respect to how the client will appear to a jury. Your client needs to make a good impression during their deposition to make the other attorney believe that the client will perform well and be credible in front of a jury. Make sure to answer any questions that your client has about the deposition process.

Also discuss the process of making objections. Tell your client that you will periodically make objections to the other attorney’s questions. Tell the client that once you make an objection, they need to stop talking. Also tell the client that they should listen to what your objection is because your objection could give them some clue as to a problem with that question so the client can better answer the question. For most objections, the client can go ahead and answer, unless you specifically instruct the client to not answer. If you say that, then the client needs to know that they have to stop talking and not answer the question. Also let your client know that they will not be able to consult with you between the question and answer. The client can only request a break to speak with you after they answered the last question.

Discuss with your client how the attorney client privilege works in a deposition. Make sure that your client understands that anything that you have told them as their attorney is privileged. They can only testify about facts that are within their own personal knowledge. You cannot let them talk about any of your legal opinions, comments you’ve made about the case, or any other information that you’ve given the client that they don’t know themselves. All of that is privileged. Tell them that if a question comes up where you think it’s likely to involve an answer with privileged information in it, you are going to make an objection that the question calls for attorney client privileged information.

3. Instruct Your Client to Tell the Truth

Instruct your client that they need to tell the truth. This is the most important advice you can give your client. Their deposition testimony is going to be under penalty of perjury, the same as if they were testifying in court. They need to tell the truth. If they don’t tell the truth, they will probably get caught in whatever ridiculous lie they come up with. Once your client’s honesty has been destroyed, it will never be recovered. Your client needs to be an honest person in order to be well perceived by a jury if the case ever goes to trial. If the client gets caught lying in a deposition and that mishap is shown to the jury, your case is ruined.

4. Provide Your Client with a Simple “Yes,” “No,” or I Don’t Know” Framework for Answering Questions

I like to provide my clients with a simple framework for answering questions. I tell my clients that many of the questions in a deposition can be answered with a simple “yes,” “no,” or “I don’t know.” The client should try to answer with one of these responses if possible. If that’s not possible, then they can answer it a different way.

You should also emphasize that an “I don’t know,” “I don’t remember,” or “I don’t recall” answer is perfectly fine. There’s nothing wrong with answering that way, the other attorney will have to leave it at that and move on. This can help clients worry less about not knowing the answer to some of the questions.

Your clients should keep most of their answers brief and to the point. There can be some questions where I want my clients to expand and go into more detail, however. For instance, in a personal injury case, I tell my clients that they should expand when they’re discussing their injuries, what pain and suffering they’ve had to endure, and how their injuries have affected their life. This is where you’re trying to prove your damages, so you want to elaborate as much as possible to build your case.

Also tell your client that it’s perfectly fine to let their emotions come out during the deposition. In a personal injury case, it’s perfectly fine for your client to cry if they’re discussing something that brings up difficult emotions. Letting their emotions come out is a necessary part of the process. The opposing lawyer is a human being (at least most of them are), so he or she will understand what your client is going through and how much your client has suffered as a result of the defendant’s actions.

5. Use the 95/5 Rule with Your Client

I have a 95/5 rule that I use with my clients when preparing for a deposition. I tell my clients that they can get through 95% of the deposition questions just by telling the truth. That’s all it takes. Just provide truthful answers to the questions. That will cover 95% of the deposition questions, which will be relatively easy and straightforward questions. I use this rule to try to give my clients a bit of comfort by telling them it’s really that simple, they just need to answer questions honestly.

The other 5% are the pain-in-the-ass questions that could be problematic for your client. We will need to put in some extra preparation for these questions. Your client obviously still needs to tell the truth for the other 5% of the questions, but they will require some careful thought to figure out how they should be answered. These include the “zingers” that the opposing lawyer is just waiting to unleash on your client. Don’t let your client get blindsided by these questions.

6. Prepare a Strategy for Answering the Worst Questions that the Opposing Lawyer Might Ask

With regard to the 5% of questions that are going to be a pain-in-the-ass, your job as the attorney is to figure out what those 5% of questions are. Figure out what the most challenging issues are in the case. What are the questions that you are most concerned about the other lawyer asking? What are the biggest problems in your case? What are the biggest issues with your client that could be harmful to your case? What problems with the case keep you up at night?

Once you figure out what those problems are, you need to figure out a strategy for how you and your client are going to approach those tough questions. These are the questions that you need to really plan ahead for. Most questions in a deposition will be pretty straightforward and can be answered without much difficulty. But questions relating to the biggest problems in the case need to be dealt with carefully. You need to advise your client on how to best answer those questions. You’re not telling them to lie, you’re just working with your client to structure the best answer possible. This is another area where laziness can come creeping in for some attorneys. Don’t leave it up to your client to try to figure out how to answer challenging questions, this is your job as the attorney.

7. Do Practice Questions and Answers with Your Client

Always, always, always do practice questions and answers with your client before the deposition. Do not make the mistake of sending your client into a deposition without practice. I don’t care how well you think they’re going to perform, they need to practice. Do this with every client, every deposition. This is a part of the preparation process where a lot of lawyers get lazy.

Meeting with your client either in person or by videoconference becomes very important when doing practice questions. Most depositions will be taken either in person or by videoconference, so meeting in one of those same ways will make the preparation session more realistic.

Pretend you are the opposing attorney and just start asking questions. Run through as many practice questions as you have time for. Do practice questions in each of the main topic areas that are going to be discussed. In a personal injury case for example, ask some practice questions about how the incident happened, your client’s background, employment, living situation, injuries, medical treatment, wage loss, any pre-existing medical conditions, their pain and suffering, how the injury has affected their lives, what kinds of things they can no longer do, what it’s like living with a disability, and any other categories of information that you think might come up.

Tell your client to always listen very carefully to the question and only answer what the question is asking, don’t go off on any tangents. If your client doesn’t understand a question, they need to let the opposing lawyer know and have the question asked again with some clarification.

You definitely want to spend extra time practicing the questions and answers for that 5% of questions that could be problematic. Spend plenty of time working on those questions. Ask questions, see how your client responds, provide some feedback, and make some adjustments. Keep practicing until your client is fully prepared.

8. Instruct Your Client to Always Keep Their Guard Up

Tell your client that they need to keep their guard up and maintain vigilance throughout the entire deposition, from beginning to end. In many cases, the client might think that the deposition is going more smoothly and easily than they anticipated, as the opposing lawyer might be asking questions in a way that makes it seem relaxed and conversational. No matter how well the deposition seems to be going, your client still needs to be hypervigilant and focus very carefully on the questions and how to answer them. If your client lets their guard down, that’s when the opposing lawyer is going to nail them with a “zinger” and catch your client off guard. Until the opposing lawyer says the deposition is over, your client needs to focus and stay vigilant.

Letting one’s guard down can be especially problematic in the later stages of a deposition. Depositions can drag on all day, wearing out your client mentally and physically. When your client gets tired, that’s when they are more likely to let their guard down. Insist on taking a 10 to 15 minute break every 1 hour or so. Going beyond 1 hour will tax your client mentally, they will lose focus, and they’re ability to answer questions won’t be as sharp.

9. Have Your Client Review Necessary Documents

Have your client review any written documents that you think they need to review before the deposition. In my cases, I have my clients review the complaint, my client’s discovery responses, and any other documents that I think might come up in the deposition. Keep this process fairly simple, you don’t need to have your client obsess over all the details in the documents.

The main point is you want your client’s deposition testimony to be consistent with other documents that have been provided to the opposition, most importantly your client’s discovery responses. The other party’s attorney would love to find contradictions between your client’s discovery responses and their deposition answers. That will make your client look really bad. Also point out that the other attorney will likely ask what documents were reviewed to prepare for the deposition and tell your client it’s ok to say what documents you had them review.

10. Build Your Client’s Confidence

Throughout the entire preparation process, make sure to keep building up your client’s confidence. Tell them they’re going to do a great job, tell them not to worry about it, tell them they’re going to do just fine. We want the client going into the deposition expecting it to go well. As a lawyer, you may have plenty of experience dealing with depositions, but this may be the first time your client has ever had their deposition taken. You do not want your client expecting that it’s going to be an awful, nerve-wracking experience. The more scared, nervous, and uncertain your client is when they have their deposition taken, the worse their performance will be. Your job as the attorney is to make sure your client goes into their deposition with the highest level of focus, preparedness, and confidence.

If you have any questions about a personal injury case or the deposition process, please feel free to call our San Jose, California office at (408) 637-5413 to schedule a complimentary consultation.