Preparing Your Client Before Their Deposition Tips Off

This March, between filling out your tournament bracket and watching the first round upsets, consider these Elite Eight tips as you prepare your clients for their depositions.  After all, the best offense is a good defense. 

1. Diagram the play – Be sure to set up a preparation meeting a day or two before the deposition.  If the matter is more complex, perhaps allow even more time.  This will help alleviate some stress the client may be feeling about the deposition and allow time for all of their questions to be answered.  As lawyers, we are comfortable with the deposition process, but this could be your client’s first time under oath.  If something unexpected surfaces during the prep meeting, this will also give you time to address it or prepare necessary exhibits. 
2. Suit up – Provide your client with recommendations on how to appropriately dress for the deposition.  This is probably their first time meeting opposing counsel, and that attorney will be evaluating your client as witness.  Depending on the nature of the lawsuit, you may want them to wear a suit, business casual dress, or their work uniform. 
3. Full-court press – Prepare your client to answer some open-ended questions, but also make sure they are ready for more confrontational, cross-examination style questions.  Use both styles when you do some role play Q&A.    
4. Out of bounds – Make sure your client understands that they will have to answer every question unless you instruct them not to answer.  Under most jurisdictions’ broad discovery rules, practically any question is fair game unless opposing counsel treads on any conversations protected by the attorney-client privilege. 
5. Turnovers – Advise your client that they shouldn’t inadvertently help opposing counsel with their examination.  Direct them to only answer the questions that are asked and to not offer additional non-responsive information – make the attorney do the work. 
6. Time out – Your client may feel particularly vulnerable in a deposition setting.  Make sure they know that they can take a break if needed.  Jurisdictions have different rules as to whether you are allowed to conference with your client during a break.  As always, check your local rules or case management order for any specific rules governing depositions.
7. Screen – Assure your client that if they do not know the answer to a question, it is appropriate to say “I don’t know.”  They should not speculate, and if counsel asks a question that calls for speculation, you may want to object.   
8. Flagrant foul – Above all, counsel your client to tell the truth.  Explain to your client that they are under oath.  This is their sworn testimony, and misrepresenting facts or offering false testimony is perjury.  Further, you risk an ethical violation if you knowingly participate in presenting false evidence in a deposition setting.

Always keep in mind that your ethical obligations remain in full force when conducting a deposition, particularly when preparing your client.  In your preparation meeting, you could be tempted to influence their testimony or “coach” them.  This is prohibited by the ABA Model Rules of Professional Conduct.  In fact, Comment 1 of Rule 3.3 concerning a lawyer’s duty of candor to the tribunal specifically states this Rule “applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such as a deposition.”  In the deposition context, you could violate this Rule by assisting your client in presenting false evidence or misrepresenting facts during their deposition.  Best practice is to prepare clients using the Elite Eight Tips above.  Leave the coaching to the folks in the Coaches Box.

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