Part of your deposition preparation has to be preparing your client for his or her turn at the depo table. Most attorneys spend their time preparing their clients for the substance of the deposition and what specific questions to expect and how to answer them. Although this is obviously important, it is equally important that your novice client knows what to expect at a deposition generally and is clear on what is expected of him or her as the deponent.
Here’s a checklist to help you get your client ready.
___ Explain the deposition process and purpose to your client, including those who are expected to attend and the usual explanation that the examining attorney will offer at the deposition.
___ Instruct your client to address those attending deposition by formal names and otherwise behave as if in a courtroom.
___ Stress the importance of remaining calm and businesslike, regardless of the examining counsel’s behavior. Tell your client that you will object to any improper behavior.
___ Point out that examining counsel may interrupt an answer and that your client should not lose control if interrupted. Explain that you will then ask counsel to try not to interrupt the deponent.
___ Remind your client not to use his or her hands or otherwise “draw pictures” that cannot be accurately reflected in transcript. You may need to explain the role of the reporter and transcript to make this clear.
___ Instruct your client not to use technical slang or imprecise terminology, which could be misunderstood when the transcript is used at trial months or years after the deposition took place.
___ Emphasize the importance of telling the truth at the deposition.
___ Explain that the deponent must have personal knowledge of matters to which he or she is testifying and that it’s unacceptable to “guess” at an answer, but that an “estimate” or a range based on what the deponent saw is appropriate (for example, the red car was 40 to 60 feet from the intersection).
___ Advise your client of papers or other items he or she must bring to the deposition.
___ Tell your client that you or another attorney at the deposition may object to a question. Advise your client to delay his or her answer to allow time for objections and any instruction not to answer.
___ Explain to your client that he or she may ask to take a break at any time during the deposition.
___ Advise your client to tell you privately during the breaks if he or she wants to enlarge or correct an answer.
___ If the deposition will be video recorded, work with your client to correct any mannerisms or habits that could mar his or her performance. Engage in mock video deposition with deponent as aid to correct problems.
Because all your hard work won’t matter if your client blows it, use this checklist to be sure your client knows what to expect in the sometimes strange world of the deposition.
For much more of this hands-on advice for depositions, you need CEB’s Handling Depositions (Action Guide). For in-depth coverage of everything related to depositions, turn to CEB’s California Civil Discovery Practice, chaps 5-6. Also, check out CEB’s program Preparing Witnesses for Deposition and Trial, available On Demand (3 hours MCLE Credit, including .5 hours in Legal Ethics).
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