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Preparing a Client for Deposition

By David A. Hirsch

The Controlled vs. the Uncontrollable

Litigation is made up of a long list of things that cannot be controlled, and a short list of things that can be controlled. The uncontrolled list includes everything from pre-existing facts to the jury panel.

Because there is so much that cannot be controlled, it is essential to control what can be controlled. Resources, including time, are limited. The choices you make early affect everything that happens later. We will examine things that can be controlled, including what has the best payoff: the most result for the least effort.

The Most Neglected Aspect of Litigation

In order to prioritize, it is helpful to recognize the most neglected aspect of litigation.

Take this one-question, multiple-choice, quiz:

When is a case most frequently lost?

a) In interrogatory answers;
b) In responses to request for admissions;
c) In document productions;
d) At depositions;
e) At trial; or
f) On appeal.

We make the argument that the correct answer is "d", at depositions. The good news is that with the proper approach, and with systematic and early client interaction, it is relatively straight-forward to avoid losing cases at a client's deposition. Let's first briefly discuss why cases are most frequently lost when a client is deposed, and then discuss how to prepare a client for deposition in a way that minimizes damage and maximizes positive result.

Why Your Case is Most Vulnerable When Your Client is Deposed

Here is why your case generally is most vulnerable at your client's deposition:

Like drafting the initial Complaint or Answer, Interrogatory responses are usually carefully reviewed and edited by lawyers. Rarely is there unnecessary damage in them; if there is anything damaging in an interrogatory response, it is usually unavoidable. The same with responses to request for admissions; a lawyer drafts the response.

With respect to document production, documents are documents; they preexist, and there is little or nothing that can be done with respect to them. Yeah, there are issues whether to slant production in the direction of under-producing, or over-producing, or whether to bury a damaging document in the middle of a stack of innocuous documents. There are ethical issues with all of that, plus doing any of that may not result in anything good. But whatever the manner of production, a lawyer has a reasonable amount of control over the manner it is done.

Even though unpredictable things happen at trial, most cases don't go to trial. As a result, cases tend not to be lost there. Even if the case is not settled or otherwise disposed of before trial, by then everyone's position is fairly fixed, and for most things it is too late to change the impact of established facts and established positions. At the minimum, choices are narrowed, and what is unpredictable, truly is unpredictable. Not much is left that can be controlled. If a case is lost at trial, by then it is hard to easily focus effort to prevent it.

If there is an appeal, winning and losing becomes an academic exercise based on a fixed, preexisting record. Yes it takes strategy and skill to do an appeal. But the impact of doing it "right" or doing it "wrong" is narrow in most situations. And most cases don't justify the expense of an appeal even if the case has what otherwise may be a good appellate issue (which most cases don't).

On the other hand, your client's deposition has a huge impact. Its effect is leveraged on every subsequent event in the course of the litigation.

It is Hard to Overstate the Importance of a Client's Deposition

The earliest critical point of a case where a case can be won or lost, or the chances for a good settlement can be maximized, is depositions.
  • It is here the other side sizes up your client.
  • It is here the other side attempts to freeze your client's positions.
  • It is here your client may volunteer vulnerabilities.
  • It is said an hour of sleep before midnight is worth two after. An hour or two of preparation before your client is deposed may be worth 100 after.
A Client's Deposition is Different from all other Events

Most lawyers are control freaks. And for good reason--lawyers are trained, experienced professionals, and litigation requires professional management. Few things are more nerve-wracking for a lawyer than when the opposition gets a free bite at the lawyer's client. When the deposition is over, assuming it went reasonably well, there usually is an internal sigh of relief on the part of the deponent's lawyer.

Depositions may be the most critical component of litigation. They are the most free-wheeling, elastic aspect of litigation. They affect everything. When a client is speaking under relatively unrestricted cross examination from opposing counsel, the client literally has nearly 100% control over the future of the case simply by moving his or her lips. That is an uncomfortable position for the deponent's lawyer.

Once the deposition begins, a lawyer has only limited ability to affect a client's testimony (e.g., by damage-control breaks, or verbal interjections). A lawyer has major opportunity prior to the deposition to minimize damage, and avoid the need for damage-control breaks and verbal interjections.

Preparation of a Client for Depositions Done Right is Effective and Ethical

Preparation of a client for deposition isn't hard. It certainly isn't rocket science. Despite that, frequently lawyers (even good lawyers) neglect preparing clients for deposition. Many lawyers underestimate the dramatic effect preparation can have on a client about to be deposed. For a variety of reasons, it is easy, and may even appear expedient, to be less than thorough preparing a client for deposition.

So much else is going on in a lawyer's day-to-day activities, frequently preparing a client for deposition is slighted. Even when major time is spent preparing a client for a deposition, lawyers may emphasize the most significant and subtle parts of the case (something that properly does need attention), but overlook some of the more mundane, but just as important, aspects of preparing a client. It is not enough to go over a case's "important points" plus only a few of the mundane principles of responding to deposition questions.

In order to teach a client to tell the truth in a positive way that least damages the case, it is essential to interact with a client regarding nearly all of the most mundane principles of responding to questions. For instance, just like a sporting event can be lost in the last 60 seconds, a deposition must be finished. It is not good to do well for the first 99% of a deposition, handle the "hard" questions, and then blow a "simple" question near the end as a result of fatigue. Good preparation includes educating the witness on this point (and how to deal with it), and scores of other mundane matters that are just as important.

Our goal with this paper is to present a structure for preparation of a client for his or her deposition that works every time in every case with every client to reasonably optimize each client's skill responding to deposition questions. Just like answers to deposition questions cannot be scripted, neither can preparation. But the methodology can be regularized to minimize the chance of overlooking anything. One must go over and learn principles.

The Goal

Your client doesn't necessarily need an "A" performance. You just don't want an "F" or a "D." Ideally you want at least a "B." Realistically, you want your client to do better than he or she would have done without preparation. But your sights should be set higher than merely doing better. Your client should not make obvious mistakes such as volunteering information or not listening to the question. Avoiding obvious mistakes (and there are many) requires systematic dialog and interaction well before deposition.

Know Your Client

1. Size up your client beginning with the first interview.
2. Does your client have verbal diarrhea?
3. Does your client exaggerate?
4. Does your client understate?
5. Does your client listen?
6. Does your client talk fast?
7. Does client have a tendency to speculate?
8. Is your client overly emotional?
9. Does client have poor memory?
10. Can your client think logically?
11. Does your client over-think?
12. Does client under-think?
13. Does your client tend to over-prepare?
14. Is client your too self confident?
15. Does your client lack self-esteem or confidence?
16. Is your client too relaxed?
17. Is your client too up-tight?
18. Does client dress appropriately?
19. Is your client able to verbalize clearly?
20. Any special or unique problems?

All these characteristics are important, not for determining what to cover (everything should be covered), but for determining what to emphasize. You must decide what to emphasize when preparing, and how much of a project it will be (the amount of time and repetition necessary) to prepare your client. For instance, a client with verbal diarrhea can be the toughest to prepare. With this type of client, you not only need to begin early, you need to repeat preparation at intervals.

Preparation for Deposition Begins When You First Meet Your Client

One should begin right away preparing a client to be a witness. Adopt the vocabulary of the case from day one. For example, if you are a plaintiff, "crash" not "accident". Insist on respectful, clean speech from the outset, even in conversation between lawyer and client. Look for opportunities to quiz (or examine) a client on issues as they come up (long before deposition or trial).

If client has many problems in referred to in the prior section, or has only one of those problems, but it is severe, you need to immediately concentrate on deposition preparation (assuming this is a case that is likely to have depositions). While it is usually unreasonable to expect to entirely eliminate any problem a client may have, it is amazing how well most problems can be minimized with proper attention early.

Have Something that Functions Like a Permanent List

It is good practice for a lawyer to keep a list of deposition witness preparation points, plus examples. The purpose of keeping the list is to make sure you cover everything with your client ahead of deposition. It is like a pilot's checklist before take-off (except that deposition preparation begins farther in advance).

Base the list on what you have actually seen happen in depositions. To some degree it is a list of examples of mistakes witnesses make in depositions, and how to avoid those mistakes. Not listening to the question, volunteering information, being unnecessarily combative, caving in when one should not – the list can be long. Composing it is a multi-year project. Any weakness resulting from a mundane point not covered in advance can cost you at deposition.

Constructing a list is more difficult than it may appear. There are inherent mechanical problems. Among them: You must remember to update it when you think of new points. It may be difficult to coordinate where the definitive current list is. Which office computer, home computer, laptop or printout has the current version? Is the list appropriately backed up? Plus, the list will lack editorial polish unless you have a lot of time to devote to it.

A reasonably comprehensive list can take years to compose. Even a seasoned lawyer's list takes time to have enough on it to be regarded as reasonably complete.

It is still a good practice to make such a list if you have not purchased a commercial substitute A comprehensive list lets you focus on the finer points while it takes care of the mundane in a comprehensive, repeatable, yet flexible manner. This not only saves lawyer time, it results in better preparation. Not only do you start out from a comprehensive base, your time and your clients' time are optimally used.

Time and Timing

Available time is the ultimate limiting resource. A lawyer's time literally is money. Can a lawyer afford to take the time to properly prepare a client for deposition? Is that really best use of a lawyer's time?

The highest and best use of a lawyer's time preparing a client for deposition is to focus on wedge issues, on recognized problem areas, and on dry-run practice cross-examinations. If a lawyer chooses that approach, the mundane and basic level of client preparation must be delegated, or it will not be done. Focusing mainly on the higher level issues (something lawyers tend to do) is like teaching calculus, but overlooking addition and subtraction.

Delegation of the basics can be to a junior lawyer, a trained paralegal, a skilled secretary, or even solo to the client. A junior lawyer, paralegal or secretary can go over the responsible lawyer's basic list interactively with the client. Or, staff can interactively assist clients in going through a prepared presentation.

A Client's Time is Valuable Too

Does the client have time to go through deposition preparation with you or your staff? Client may be out of town. Client may be busy. Client may be impatient.

Usually clients are easily persuaded of the importance of complying with preparation requests. Clients generally are very appreciative of assistance in deposition preparation, and ordinarily are compliant with requests for their time.

Sometimes it is necessary to be totally efficient and creative in maintaining client interest in preparation. For instance, a busy doctor, a harried parent with children, or anyone with a short attention span, full schedules, or geographical separation from you, presents preparation challenges. You may need every tool you can draw on to get the job done.

The Importance of Interactive Preparation

Interactive preparation includes cross-examination by an attorney or staff member.

Cross-examination by a deponent's lead attorney is wonderful preparation. The lead attorney knows the case best and knows client best. While some cross-examination by lead attorney is highly desirable, to have total preparation done by lead attorney may not be economically feasible for the firm (or the client), and is not likely to be the best use of lead attorney's time. There is also the problem of a lead attorney naturally tending to focus on the wedge issues, or the more sophisticated points, and neglecting some (or many) simple, obvious points that nonetheless can be really important to a good deposition.

Interactive preparation can include a programmed computer presentation on deposition preparation. A computerized program never forgets the basic points. It covers virtually all basics, allowing you to focus critical time emphasizing what you feel is most critical for this particular witness, plus wedge issues that may be unique to the case (without worry of slighting basic technique). One can skip over inapplicable points. A client can easily go through it alone interactively or interactively with a staff member, or interactively with an attorney.

A computer program like DepPrep frees up a lead attorney to focus on more sophisticated matters when interacting with clients without worrying about whether the basics have been fully covered. A computer program is not case specific, and does not address wedge issues in a particular matter; it is not a substitute for one-on-one attorney interaction anymore than a secretary or a paralegal is a substitute for an attorney. The right tool for the right job.

A canned videotape on deposition preparation is easy to use, particularly at home. Unlike a computer program, videotape cannot easily jump from part to part. And, unlike a computer program, one is pretty much forced to go through an entire videotape presentation linearly. A client cannot use it interactively alone, other than to pause, rewind, or fast forward. Videotape is also difficult to use interactively in the presence of a legal professional. One is likely to view it passively. Videotape, like a computer program, also is not case specific. However videotape adds a useful tool to the mix of preparation choices.

Static, Non-interactive Preparation

Depending on the case and the client, one can ask a client to go over the complaint and answer prior to deposition. A client may, to an extent, become familiar with claims and defenses. Pleadings tend to be technical (and boring), so the benefit of this is limited.

Reading (or re-reading) interrogatory responses, particularly the deponent's own, can be useful. Clients becomes familiar with what they have said and and with what others have said. But interrogatory responses may not contain a lot of information, or may be cluttered with technical comment or objections.

Reading produced documents, particularly those authored by the deponent can be useful preparation. However that may be cumbersome in a paper-intensive case. You may want to select key documents.

Reading prior depositions (of other witnesses) may either be useful or distracting. Usually it is not necessary, particularly if the client attended the deposition.

Getting Results

The easiest way to improve case outcomes is to make sure your client minimizes damage at depositions. Your client does not need to hit a home run. She or he just needs to avoid striking out. The right methodology will help your client perform. A little help systematically given ahead of time easily produces results. Perfection is not important. Improvement over what otherwise would have been is a minimum goal. A realistic goal is no silly mistakes. Your system should ensure that all the basics are covered, leaving room for attacking the wedge issues.

Doing it systematically not only pays off, it is so easy that one only wonders why most lawyers don't institutionalize the system. It is in your interest that they don't, and you do.

Interactive preparation that starts with the basics is the best preparation because a client learns the method of responding to questions. Rather than passively preparing for a final exam, your client learns to handle almost any situation. All the basics are covered every time. That is the goal. And it is do-able.

About the Author

David A. Hirsch is a practicing attorney with the firm of Beckman & Hirsch, P.L.C. located in Burlington, Iowa. He is the author of Author of DepPrep, a witness preparation tool and worked in conjunction with Greg Krehel co-founder and developer of the CaseMap Suite of software. David has numerous publications in the area of ethics, litigation support tools, electronic filing and related areas. He is a Speaker at seminars that include: American Bar Association Annual Meeting (New Orleans), Iowa Trial Lawyers Association, Iowa Academy of Trial Lawyers, Iowa State Bar Association, Missouri Bar Association, Wisconsin Bar Association, ABA Techshow, and others.

About Dep Prep

Think of DepPrep, LexisNexis'® CaseMap® interactive deposition preparation software, as a method and a structure for tutoring your client. The method in some ways is more important than the content. That is because DepPrep doesn't attempt to foresee everything, and it scripts very little. DepPrep focuses on a thought process enables your client to handle nearly every situation.

DepPrep is designed to assist in the preparation of a client for deposition. In addition to accomplishing that, it also functions as documental due diligence that a lawyer has met a certain standard of preparation with respect to preparing a client.

If you choose to use DepPrep to help a non-party witness prepare for deposition, DepPrep has the advantage of being neutral in its approach. If the witness is asked about preparation for deposition, it is relatively innocuous to respond that a commercial computer program was used to familiarize the witness with what happens at a deposition, and that the program emphasizes listening to the question and answering it truthfully. That is better than the witness saying one of the party's attorneys educated the witness regarding how to answer questions.

DepPrep thoroughly and interestingly takes care of the basics, freeing you to focus on wedge issues with your client, without worrying about omitting important, but mundane, preparation. DepPrep builds a floor that allows you erect the walls and raise the ceiling.

You can download free 30 day trial copies and get more information on DepPrep at http://www.casesoft.com/depprep/index.shtml

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