Article of Interest

Article of Interest

5 Things Associates Need to Know Before Preparing Clients for Depositions
By: Chris Simmons

You are sitting in a conference room. The court reporter diligently transcribes the record. The videographer has your client’s image on screen. The tape is rolling. Opposing counsel has been deposing your client for 30 minutes. You think to yourself, “I’ve got this under control.” The next instant, opposing counsel asks your client a question and your heart instantly repositions itself from its customary location on the left side of your chest to somewhere in your esophagus. As your client flounders to answer the question, you think to yourself, “Why did I not prepare my client for that question?” You spend the remainder of the deposition, and possibly the remainder of the litigation, trying to undo what has just occurred.

If you have lived through this experience, like many of us have, then you realize the importance of thoroughly preparing your client for his or her deposition. Although the old adage “learn from your mistakes” is a commendable personal undertaking, in the context of practicing law it is more preferable to live by the axiom “learn from others’ mistakes.” So in an effort to help you learn from others’ mistakes, here are five points you should consider when preparing your client for deposition.


Whether your client is out-going, charismatic, or reserved, it is up to you to identify how his or her personality will impact the presentation of your case. One slip of the tongue or lapse in judgment during a deposition can provide opposing counsel with a valuable tool to undermine your client in front of a jury. Therefore, you and your client must understand that the presentation during deposition is equally important as presentation at trial. In counseling you client, temper confidence and charisma with humility. In order to avoid a perception of evasiveness, help him strike a balance between analytical responses and transparency. Understand that how your client presents his testimony can be as important as its content. Remember, in a courtroom, the jurors’ perception of reality is reality.


Few things make a client feel unprepared like questions about discovery or pleadings that the client is not prepared to answer. Your client’s answers to these questions can significantly impact the litigation and be useful to the opposing side in future pleadings (for example, motions for summary judgment or motions to compel discovery responses). On the other hand, your opponent’s intent in asking these questions may be nothing more than to undermine your client’s confidence. Simply put, if your witness loses confidence in his level of preparation, your opponent will be able to control him more effectively. The solution to this scenario is relatively simple: discuss the status of the pleadings and discovery with your client and prepare him to give appropriate responses.


Since every case has flaws (believe me, they do), you need to approach your case from the perspective of your opponent and decide what testimony would be most helpful to his case, i.e., harmful to yours. Think “big picture.” Don’t limit your evaluation to testimony that could impact existing claims/defenses, consider testimony that could lead to additional claims/defenses. With that in mind, discuss your claims/defenses with your client. While it would be impractical to educate your client on the nuances of contract law, if the claim is for breach of contract, you should make him aware of the elements. If you have a key piece of evidence (i.e., a document or testimony), you should discuss it with your client. The bottom line is this: don’t allow your client to go into a deposition without having discussed what you are trying to accomplish and what you need to avoid.


Although this may sound like an incredibly obvious point, we often overlook the obvious. As lawyers, I believe we fear appearing less knowledgeable than our clients on topics relevant to the litigation. After all, we are supposed to be the experts, right? Not necessarily. Our true expertise should be identifying relevant evidence/testimony and effectively shaping and molding it through the course of litigation in order to bring about the sought-after result. As such, we should look to clients as invaluable resources while preparing for their depositions. No matter how many times you think you have heard your client’s recitation of the facts, you will probably learn new information during his deposition. In an effort to minimize the risk of this situation, you should approach a deposition preparation session as an opportunity to delve into the facts from differing viewpoints in a collaborative effort with your client. A question with one goal, asked three different ways, may elicit different information. Engaging in substantive, case-specific dialogue with your client provides you with the opportunity to employ your true expertise, i.e., identify all relevant facts and fully evaluate their impact on your client’s case.


Associates, as a group, seem to view depositions as either “I am taking a deposition, therefore, I am on the offensive,” or “I am defending a deposition, therefore, I am on the defensive.” While this mindset is correct in the obvious sense, it is overly simplistic and, if strictly adhered to, potentially detrimental to your case. How is it detrimental? As we have all heard, an opportunity we fail to seize is an opportunity we lose. Applying that saying to the topic at hand, you can prepare your client to respond with beneficial testimony when opposing counsel delves into certain, key topics. In other words, your client’s deposition is not only about damage control, it can provide an opportunity to affirmatively advance his claims.