Page 12 - Litigation

S12 | MONDAY, JULY 17, 2017 | Litigation
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10 Tips to Prepare Your Client For a Successful Deposition
Once you have gone through the process with your client, it is time to get to the sub- stance and advise the witness how to be a good witness. I have found, though, that the key to preparing any witness for a deposition, whatever the case is about and whatever role your client played in the underlying event or transaction, can be boiled down to the following 10 tips you should give your client about the deposition:
1. Review key documents and prior sworn testimony.
If your client has not looked at the docu- ments you pulled yet, you should give a reminder at the deposition preparation session that he or she needs to look at these documents before the deposition. This includes key case documents and, of course, emails. Pay special attention to emails when preparing your client. Answers that contradict the emails of a witness because the witness simply did not take the time to review them are never fun to deal with. You will also want to remind your client to look at any verified plead- ings, sworn affidavits, or prior testimony in any related case.
2. Listen to the question you are asked.
This is the most important tip you can give your client. Make sure your client knows that it will not benefit anyone if he jumps the gun and interrupts a question because he assumes that he knows where the attorney question- ing him is going. Tell you client to listen and make sure he understands the question. It is okay to ask the attorney to rephrase the question if at all unclear. The witness should only answer the question that is asked and nothing more.
3. Pause before answering.
This is a simple instruction but one that witnesses sometimes find hard to implement. A pause even for just a moment—a breath—if utilized, can be tremendously helpful. It will give your client a chance to think about the answer. It will also give you a chance to get any objection on the record before the wit- ness starts answering.
4. Answers should be short and to the point.
This is where the discussion you should have had with your client at the beginning of the preparation session about the purpose of the deposition will come in handy. This is not the time for your client to try to per- suade anyone that she is right and the other side is wrong. Just answer and move on. The time will come later in the litigation process to make or defend your case. Yes and no answers are fine. In fact, where appropriate, they are ideal.
5. If you are asked a question about a document, you can ask to see it.
Don’t let your client feel intimidated by the questioning attorney. If she is asking about a document, it will probably lead to better results if your client simply asks to see the document. If necessary, you should ask.
6. If you don’t remember something, it’s okay to say so.
Often the underlying events at issue will be years gone. And your client’s memory may have faded too. That is fine. Be sure your client knows that it’s perfectly acceptable to respond with “I don’t remember” or “I don’t recall” if that is the case. A deposition is not
BY JENNIFER B. ZOURIGUI
Adeposition you defend is unlikely to make your case but, as many lawyers have learned the hard way, it may very well break your case. An ill-prepared client is your worst enemy. So it is up to the law- yer to make sure that the witness is ready when deposition day arrives. The key to a successful deposition is a successful deposi- tion preparation session.
In order to properly prepare the client, you must prepare yourself first. Understand what the case is about. This means becoming familiar—if you are not already—with both the facts and the law at issue. It also means developing a familiarity with the documents. Depending on the complexity of the case, there may be a sizable amount of documents
JENNIFER B. ZOURIGUI is a partner at Ingram, Yuzek, Gainen, Carroll & Bertolotti.
that have been produced and you need to dive in and find the ones your client may be asked about.
But equally as important as understand- ing the case and the documents, is under- standing your client. Each meeting, each telephone call, each interaction with your client is a chance to assess and recognize your client’s style and personality in order to gauge any potential pitfalls for deposition day. This includes evaluating which type of client you have. Examples may include: the chatty client, the easily intimidated cli- ent, the cocky client, or the nervous client. Understanding who you are dealing with will help you guide them and afford you an opportunity to stress the advice most relevant to your client. The cocky client, for example, may not need you to remind him to be clear and confident in his answer. The nervous client may. Emphasizing with the chatty client the need to listen to the question and to answer only the question being asked will be key. Pay attention to
your client and adapt your preparation ses- sion accordingly.
The preparation session should be sched- uled close to the deposition, ideally a few days before, so that the information you discuss and review is fresh in the client’s mind. You also want some time before the deposition to address any issues that may come up at the preparation session. A follow-up session may be needed the day before the deposition.
Key documents should be reviewed at or, if lengthy, in advance of the session. This is also the time to explain the deposition pro- cess and purpose to your client. Be sure to explain how her deposition testimony can— and cannot—be used during the litigation. You should also walk your client through the procedural aspects so there are no surprises. This includes the role of the court reporter and taking sworn testimony, objections that will be made for the record, and breaks that will take place. It is also a good time to remind the client about the scope of the attorney- client relationship and privilege.
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