Fran Brochstein - Mediator & Attorney in Houston Texas
Friday, April 17, 2015
Preparing for a deposition
During the deposition phase of discovery, lawyers usually have to take and watch depositions.
Unfortunately many lawyers spend a disproportionate amount of time preparing to take the other side’s deposition.
Though it makes sense to spend more time preparing for depositions that the attorney intends to take of opposing party and/or his witnesses, a failure to adequately prepare the client and/or any of the client's friends/family for their deposition can have catastrophic consequences for the client's case.
In fact, a proper and thorough prep may take hours depending on the case and the witness.
It's a famous story that the attorney should always know how each person about to be deposed is going to answer each question. Attorneys don't like surprises because they can hurt the case.
The deposition will not win the case
The single most important rule for a witness to remember is that he or she can’t win the case with their deposition.
The deposition isn’t given in front of a jury, and the opposing lawyer will only pick out the bits and pieces of the deposition transcript that are helpful to her case.
It’s vital for the witness to understand that (in general) they can only hurt your case in a deposition, not help it. If a witness understands this fact, then usually he will be more circumspect with his answers.
Review how the opposing lawyer might use the deposition in motions or at trial
Remind the person about to be deposed that the opposing attorney may be trying to confuse or intimidate them.
Remind the person being deposed that the opposing counsel will attempt to prove the opposing party's theory and/or be used to impeach the person at the trial.
The witness needs to understand how he can potentially torpedo your case, his credibility, or both.
Most of the time witnesses don’t really understand the how important how they answer is -- For example, if a person answers in a "sarcastic" manner "Yes" when the answer is really "No". The court reporter merely records what the witness said. It is not included in the transcript, "witness said yes but really meant no" or "the witness answered in a sarcastic manner".
Make sure that they understand that, if the case goes to trial, their answers at trial will be compared to their deposition testimony with great scrutiny.
Inconsistencies can hurt credibility.
Verbose, rambling responses potentially can give the opposing counsel a great nugget in a motion brief.
Once your witness understands how his answers can be used against him, it should help control answers that make you want to bury your head in your hands.
Don’t assume, speculate, or guess -- it's ok to say "I don't recall".
It doesn’t help.
Lawyers know this but laypeople don’t, or they forget.
If you watch any news show during a major breaking news event then you’ll hear more conjecture than fact.
While this can fit into normal daily conversations, conjecture doesn’t help in a deposition.
The witness needs to understand why guessing at an answer is not helpful.
I just tell the witness that if they guess wrong then they lose credibility since they’re shown to be wrong.
Often the person being deposed rambles on and on. Answers need to be short. Not a lot of elaboration.
Words like "always" "never" or "100% of the time are not good to use. For example, I always wear my seatbelt when driving means that the person has never ever driven one inch without wearing a seatbelt. If opposing counsel can show one instance that the person did not wear the seatbelt then the credibility of the witness is in jepardy.
Take your time
Often the witness goes too fast.
Encourage them to take a deep breath and relax before answering the question.
If they don't understand the question, the witness needs to understand that they can say "I don't understand, can you re-phrase the question." Sometimes even the best attorneys ask questions that make no sense.
The main issue is that they blurt something out before you have had a chance to object or before they have had time to carefully consider their answer.
Encourage them to pause after each question before responding.
A person can get tired during a deposition. Breaks are allowed. It might break the flow of the person asking the questions.
Ask questions that you expect opposing counsel to ask the witness.
Practice having the witness pause between the end of the question and the beginning of his answer.
Practice how you want the witness to review any documents.
The witness needs to be prepared to answer hard questions and not get upset.
Emotional outbursts tend to hurt the client's case.
Some depositions are done to merely "upset" the client. They need to be prepared to hear questions that they don't want to answer.
Show a sample deposition on YouTube
It is very instructive for deponents who may not have seen a deposition.
Show them videos of good and bad witnesses.
You can make a playlist, show a snippet, and cover what the witness did right or wrong.
In 20 minutes, this interactive session can teach the witness a lot more and prepare them for what to expect realistically.
Remember the privilege rules (but don’t let that prevent you from prepping the witness)
If the witness is your client, then your preparation is covered by the attorney-client privilege.
People prepare for weddings and other important events in their lives, so taking the time to prepare for a deposition only makes sense.
Most people have never seen or been to a deposition. They are scared. So practicing for a very stressful event like a deposition makes a lot of sense. People appreciate practicing before going into a deposition.
Prepare the client to read the deposition
Depositions are very strange to read. The client (or witness) needs to understand that they need to actually read the deposition carefully for errors made by the court reporter. Many times the client (or witness) does not spend the time and read the deposition.
Give the person being deposed a copy of a deposition or examples of badly answered deposition questions to read prior to being deposed. Let them see some examples of how their deposition will look when it is typed up by the court report. It is usually an eye-opening experience.