What every new attorney should know about depositions is a broad topic. While you are trained and familiar with both the law and procedures, your clients are not. As you prepare for trial it is essential to put forth a substantial effort to familiarize them with the process as much as possible. This will help advance your case and minimize the possibility that anything discussed or witnessed during the deposition will negatively impact your position.
Preparing Your Clients for Depositions
Depositions can be stressful for clients. The more effort you put forth preparing your client, the more comfortable they will become. What every new attorney should know about depositions is that preparation is more than reciting the oath. It is more than discussing what types of questions they can expect. It is about understanding the procedures. It is about discussing the people who will be in the room and the venue. It is about determining how the client should answer questions and react throughout the process.
The key to preparation is practice. Mock depositions can help clients relax and get a genuine feel for what to expect. While conducting your mock deposition you will want to focus significant effort on the importance of listening closely to questions and pausing before delivering responses.
Clients should also know who will be present during the deposition and the roles of the court reporter, and when applicable, the videographer. Knowing who these people are and the functions they serve will help your client relax as the deposition begins.
Finally, it is vital to prepare them for what they can expect during the process. Your clients should understand the procedural matters as much as possible. This includes discussing the process of direct examination, cross-examination, re-direct, and re-cross.
Discussing Traps, Admonitions, Objections, and the Importance of the Truth
Clients should never volunteer more information than is necessary to answer a question. Yes, no, I don’t know, and I don’t recall are always the best answers. They are also the most effective way to avoid traps the other counsel may set. Similarly, clients should be prepared for your defense during the deposition so that they’re not surprised when you raise objections to the other counsel’s questions.
It is also important to teach your client to understand the most common admonitions raised during a deposition. This will help them stay calm and remain focused should they arise.
Finally, it is advisable to stress the importance of sticking to the truth. Clients should know not to guess or reach for the answers they believe the opposing counsel wants to hear. In particular, clients should know not to deliver answers that could undermine the consistency of their statements, or call the veracity of their claims into question during trial.
Depositions are Not about Winning
Depositions are a defensive measure that is incorporated into your overall strategy for winning the case. They are an opportunity for the client to tell their side of events and to discuss the facts of the case. They should never be used to try and persuade or convince the other side of the merits of your case. Depositions should be used to gather and share information, and your clients should be instructed to keep their answers as short and direct as possible.
“Off the Record”
Clients should understand that nothing surrounding a deposition is off the record. This includes any conversations or interactions you or your client may have with opposing counsel or their client before or after the deposition. Clients should be prepared to be civil and straightforward, and should be made aware that anything they say or do can be used by opposing counsel to craft their case or present it during trial.
The 21st Century Deposition
What every new attorney should know about depositions is that technology has made depositions easier and more thorough. It is possible to digitally share evidence and information presented during the deposition with both sides as well as with the court reporter. This streamlines the process from start to finish and makes it possible to conduct remote depositions. Similarly, audio and video recordings of the deposition can be utilized during trial. These can be combined with a digital copy of the transcript provided in either RealLegal, PDF, or ASCII format. This makes it easy to pull relevant information from the deposition and present it to the judge or jury.
What Every New Attorney Should Know About Depositions: The Bottom Line
Depositions can become a cornerstone of your case. They can help clarify questions and diffuse potential challenges to your client’s claims. Depositions should never be taken lightly. The more time you spend preparing yourself and your client for the process, the better the outcome.
In another article, we discuss How Attorneys Can Help Improve Their Deposition Transcript Delivery Time.