Alert Your Client to These Depo Issues

When preparing your client for his or her deposition, devote particular attention to explaining the following objectionable areas of inquiry and substantive law on those areas.

  • The examining attorney can’t invade the attorney-client privilege. This means that all conversations between counsel and client are protected, including those that occur in the course of deposition preparation.
  • There’s a privilege not to disclose confidential marital communications or to testify against one’s spouse. This means that the client doesn’t need to say “The other day I told my wife….”
  • It’s counsel’s responsibility to recognize when the examining attorney is seeking protected information or asking other improper questions. The client should understand that it’s your job to spot improper questions and object to them. That’s why it’s important that the client listen to each question carefully and pause before answering to give you a chance to jump in.
  •  Counsel may make objections to preserve them on the record, after which the client may respond unless instructed not to do so. This may seem confusing to clients, so it’s helpful to explain this process in advance.
  • Everything the client says is on the record. The client needs to understand that everything they utter during the deposition is on the record. This includes even a question to counsel such as, e.g., “Do I have to answer that?”
  • The client should think before answering leading questions. Leading questions from the examiner require the client to consider how to answer truthfully without prejudicing the case. Explain that a leading question is one that assumes the answer, such as: “Isn’t it true that….” or “Wouldn’t you agree that….”

Always warn your client not to bring anything to the deposition except what has been specifically requested. For example, the client shouldn’t bring the case files or other case information. Explain that any documents that are brought into the deposition may become the subject of deposition questions.

Get expert guidance on all aspects of taking and defending depositions in CEB’s California Civil Discovery Practice, chap 6. For discussion of the attorney-client and other privileges, the work product rule, and other protections, turn to chapter 3 of the same book.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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