800.770.7008

1505 Division Street | Waite Park, Minnesota 56387

Advice for Lawyers

DEPOSITION WITNESS PREPARATION

By T. Joseph Crumley

Witness preparation is an important but complex task. Sure, there are basic rules and instructions that you want to provide for any client being deposed. However, on cases of any significance, much more than the basic instructions is required.

Every single case out there is different from every other case. Every defense lawyer is different from the others. Most importantly, every deponent is different, and brings to their deposition a different background, personality, morality, and experiences. It is important to provide your clients deposition preparation tailored to their specific case and to their specific needs.

The Traditional Instructions. Every lawyer has a set of standard instructions they provide to each client. This may be written instructions, perhaps a blurry, 27th generation photocopy from a 1984 CLE mailed out to the client with a notice of deposition. Perhaps it is a professionally produced deposition preparation video shown to the client on the morning of the deposition. Probably it should be both, and those materials should be just the beginning.

The Written Instructions. It is important to send the client written instruction for the deposition. But they can’t be the last word. Different people learn in different ways and many of your clients simply will not get anything out of the written instructions. Some will try to read them but lack the focus or comprehension necessary to get much out of them. Other more ‘verbal’ people will study them until the instructions are practically memorized.

If written instructions are the beginning and end of your client deposition preparation, then you are failing as an attorney and counselor.

On the other hand, it is probably a good idea to know exactly what you have sent your clients. After ten or fifteen years of sending the same instructions out, you may not remember what is on the sheet. Your deposition style may have changed. When you give preparation before the deposition, your client will be confused and disappointed if you contradict your own written instructions!

Here are your editor’s set of general deposition instructions, primarily for use in personal injury cases:

DEPOSITION INSTRUCTIONS TO CLIENT

The opposing lawyer has the right to ask you questions under oath. This is called a deposition. I (or one of your other lawyers) will be with you throughout the deposition. There will also be a stenographer (called a court reporter) recording everything that is said.

Even though there will be no judge or jury present, you will be sworn to tell the truth. Errors or contradictions can be used against you in court. It is very important that you answer all questions carefully and accurately. Here are some tips to review before we meet to prepare:

1. You should be well groomed, and wear clean, neat, conservative clothing.

2. Always tell the truth, even if you think it hurts your case. If you have any questions or concerns about this or areas you can’t talk about, you must talk to me about those before the deposition.

3. Treat everyone at the deposition with respect.

4. Sometimes the attorneys are familiar with each other, and chat about families, sports and their partners. Don’t be offended, this is normal for lawyers.

5. The opposing attorney may start off being friendly and asking easy and friendly questions about your family, where you grew up, your work, your children, etc. The reason for this is they want you to get comfortable talking with them.

Do not forget that their job is to make you lose your case. Stay polite, but do not ever believe the opposing attorney is your friend.

6. Never lose your temper or get angry. The best way to deal with an offensive lawyer is to ignore the rudeness and continue responding seriously and courteously.

7. You do not have to hide all emotions. If you sincerely feel sorrow, pain, embarrassment, etc., there is nothing wrong with showing it.

8. Your answers should be out loud. Answer “yes” and “no” versus “uh-huh” or “Unh-unh.”

9. Listen carefully to the entire question. If you do not hear the whole question, you cannot give an honest answer.

10. Do not interrupt the question even if you know the answer.

11. Never exaggerate or magnify your symptoms or problems.

12. Never minimize your injuries or losses. Tell it like it is.

13. Do not volunteer information. If “yes” or “no” answers the question, then that is all you should say.

14. If you do not know the answer or do not remember the answer, then say so.

15. If you do not understand a question or a part of a question, then say so. Do not answer if you do not understand the question.

16. If you realize you made a mistake with something you said earlier, you should immediately correct yourself and get the correct answer on the record.

17. Never guess or estimate about time, speed or distance. You should talk about any such estimates with us before the deposition.

18. The defense can ask about almost anything, including things not allowed at trial. Always tell the truth and if we need to have the judge exclude sensitive information, we can make a motion before trial. Again, ask me before the deposition if you have concerns about anything specific.

19. If I object or start talking, immediately stop talking and listen. You may learn something, but more importantly, I will tell you whether or not to answer.

20. If you need to take a break to talk to me, you may do so if there is not a question pending. However, it is best to answer questions without appearing to need my help or a break.

21. If your symptoms require you to stand, move around or take a break, you should say, “My ____ hurts, do you mind if I stand while I answer?” or whatever is appropriate. However, it is best to keep answering questions if you can.

22. Sometimes, there is more than one opposing attorney. They may make take turns questioning you. This is normal.

23. During the deposition, I will probably be very quiet. I may not make any objections. I also may not ask any questions. This is normal.

24. Use your own words in answering questions. Do not use my words or the words of your doctor.

25. Do not try to memorize your testimony. Use your own natural words.

26. You may be asked to show any injuries that you have. Please talk to me beforehand if you have any concerns about this.

27. It’s okay to be nervous, but do not be afraid of the other lawyer. I will be in the deposition with you to help when necessary. So, relax and everything will be fine.

What else should I mail to my client?

The issue of what additional documents should be mailed to the client for review is a difficult one. Some clients will have no difficulty going through a large package of materials. Other clients will be overwhelmed even with a one page deposition tip sheet. Here are a few things you may want to consider sending, in your editor’s order of importance:

Client’s Statement or Prior Deposition

If your client has given a recorded or signed statement, it is important that they know exactly what they said previously to avoid or identify contradictions. Many statements are presumed fraudulent under Minn. Stat. § 602.01, but it is still crucial that the client know exactly what they said and have a very good explanation if their testimony is going to vary from that.

Answers to Interrogatories

Since Answers to Interrogatories are also sworn testimony, it is very important the client knows exactly what they said. They must also have excellent reason for varying from those answers.

Police Reports

Statements of Other Witnesses, Etc. It may be important for the client to know what other people are saying about the facts, especially if it is sworn testimony. Mailing these materials might be overwhelming to some clients. Even so, any issues with reports and testimony should definitely be covered in the meeting with the client before the deposition.

Narrative Report

Adverse Reports and Medical Records. Again, a large packet of medical records may be overwhelming. However, if there are specific entries that the client should review in detail, such as prior injuries and prior complaints, it might be worthwhile to copy those selectively. Similarly, it might be useful to have the ambulance report, the emergency room record, and other crucial post-injury records copied.

On the other hand, there is no requirement that the client have all of their medical records memorized. If the client testifies at the hearing “I don’t know” or “I don’t remember,” they can always refresh their recollection prior to trial and will be able to resist any impeachment by pointing out, “I looked over my records so now I know the answer.”

MNAJ member Mark Malzahn provided a valuable tip. When the defense attorney asks about prior care or prior injuries, hoping that your client forgets something, he prepares his clients to respond, “Nothing I can think of, BUT YOU HAVE ALL OF MY MEDICAL RECORDS. DID I MISS ANYTHING?” Good Answer.

The Preparation Session(s)

The in-person preparation session may take place in the hour or so before the deposition starts or you may choose to have a preparation session or sessions in advance of the deposition date. Certainly, there are only a few cases that justify multiple deposition preparation sessions. But certain cases even justify having a partner or an associate practice-depose the client in advance to attempt to prepare the client and to help identify trouble areas. In any event, even if there were one or more preparation sessions prior to the deposition date, a brief review meeting is in order to refresh the instructions and hit the high points again. The repetition will also give your client some comfort going in to the deposition.

Deposition Preparation Videos

Many lawyers choose to purchase a professionally produced deposition preparation video. There are advantages and disadvantages to these videos.

The first advantage is consistency; the instructions are always the same. You can rely on a video to never omit an instruction or to brush past something. It is always the exact same length, the exact same instructions, and the exact same base of preparation for your client.

Hopefully it is also a good set of instructions. The same rule applies for video as written instructions; if you have not seen your tape in a while, you better review it again and know what your clients are hearing and seeing.

Throughout your editor’s career, various versions of the Wisconsin State Bar Association videotape and now DVD have been standard fare. It is non-controversial, fairly comprehensive, and fairly widely used.

Whichever tape you choose, it is crucial that you explain in advance why you are using a video and all the advantages. You do not want your client to think that the only reason you use a video is so that you can shirk on some preparation responsibility while you are working on somebody else’s case or answering phone calls. It is also wise to provide the client with a pen and paper as well as the remote control so that they can pause the video and write down specific questions they might have as they come up.

Specific Instructions

A crucial portion of the deposition preparation is talking to your clients about problems or issues specific to their case. To do that, you must know your case. This is a requirement that starts the day you take the first phone call and continues throughout the representation.

Obviously, a review of the file is crucial before your client’s deposition. Many lawyers feel that since they are not usually asking any questions, they are just there to take notes. That may be true to a very small degree during the deposition itself, but a thorough knowledge of the file is absolutely required before client deposition preparation.

Your client needs to know how to address some of the areas that you anticipate the defense attorney will inquire about, such as:

  • Problem areas. For example, in a personal injury case prior similar injuries, prior lawsuits, and other medical issues are often at the core of the defense.
  • Legal standards. In an automobile case, the no-fault thresholds may be something you want to discuss with your client. In a slip and fall case, various issues involving Aopen and obvious@ definitely need to be addressed with the client.
  • Liability issues. If you have an intersection crash, it is going to be very important to discuss those details with the client and how the defense attorney may question regarding those areas.
  • Damages issues. Many lawyers reverse the “no volunteering” rule in this area because they feel it is crucial for the client to explain all the damages and how it has affected them.

Rehearsal

There is some difference of opinion about the effectiveness of rehearsing questions and answers. On the one hand, some lawyers are concerned that their client will come off as too smooth or polished or perhaps as having memorized certain answers. Certainly a well thought out, truthful but spontaneous answer is preferable to a memorized answer.

On the other hand, your client has probably never been interrogated before. They need to know what to expect so that they are not shocked or surprised. The video will help them, but I have found that rehearsing at least a few areas is helpful. In addition to the areas specific to my case, I like to ask my client in rehearsal:

“Do you know the time?” Most clients answer with the time when it is actually a yes or no question. I use this to remind them to only answer the exact question asked and not to go beyond it, even if it seems silly or uncomfortable.

“Give me the shortest answer to this question: Describe what happened in the crash.” Almost universally, clients will begin a recitation of what street they were on, what city it was in, what direction they were going, and all sorts of extraneous details. I remind them that they are supposed to keep their answers short and not volunteer any information. I then ask, “Isn’t the shortest answer -- I was rear ended by your client -- or “Your client ran the stop sign and hit me”? or something to that effect.

Witness preparation is a crucial portion of your representation, and should not be taken lightly.

Our Articles READ MORE »
E - News Letters READ MORE »
Advice for LawyersREAD MORE »
Web Resources READ MORE »
Firm OverviewREAD MORE »
Attorneys and StaffREAD MORE »
Our Awards and AffiliationsREAD MORE »
Our VideosREAD MORE »
ParaquatREAD MORE »
Roundup LawsuitREAD MORE »
Hernia Mesh LawsuitREAD MORE »
Personal Injury Information CenterREAD MORE »
Visit Our Personal Injury BlogREAD MORE »

CONTACT US FOR A FREE CONSULTATION