Trial Lawyer Resource Center

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In most personal injury cases, one of the critical events is the plaintiff's deposition.  Yet many lawyers put a low priority toward preparing their client for deposition.  But if you "lose" the deposition, you are facing an uphill battle at trial.  This post is not meant to be a comprehensive list of what you should do to prepare your client for deposition.  Instead, it represents one lawyer's experience from the trenches of what often gets missed in preparing clients for deposition.  I rely more on my experience as a defense lawyer than as a plaintiff’s lawyer in this regard.

Preparation begins by spending time getting your client ready to testify at his or her deposition.  This is done by adequately preparing your client for deposition which should lead to you knowing what your client is going to say on the critical issues in the case before the deposition.   It also involves making sure your client understands that the purpose of the deposition from the plaintiff's standpoint is to do no harm.  There is no need to make your case during the deposition.  This is where some plaintiffs get into trouble.  Plaintiffs are so eager to make their case to the defendant's lawyer that they tend to overreach.  When a good defense lawyer spots an exaggerator, the lawyer will continue to ask questions that encourage further exaggeration.  At trial, your client is boxed into a story that no juror will believe.  If you are preparing your client for deposition and you are not sure if you believe something they are telling you, flush it out until you are satisfied the client is giving an honest version of the facts.  Make sure your client reads and rereads his or her interrogatories before his or her deposition.

Other suggestions:

1.         In motor vehicle accident cases where liability is in dispute, time and distance are often critical. Guesswork can discredit an honest truthful witness and/or introduce controversy where it need not exist.  Take the time before the deposition to obtain exact measurements and site line distances.  Make sure your client's version comports with a reasonable interpretation of the physical facts.   Left to their own devices, some clients who are trying to be as honest as possible still give ridiculous time and distance estimations simply because they are not good at making such estimations. 

2.         Many personal injury clients fail to appreciate the difference between a deposition and a trial. Explain to the client that the primary goal is to do no harm.  But also explain that while the defense lawyer is not your friend and is trying to elicit answers to help defendant's case at trial, the defense lawyer may be influential from a settlement perspective. Counsel the client to afford the defense lawyer the respect to which they are entitled even if the client feels it is not always being reciprocated.

3.         Draft the 10 most critical questions that the defense lawyer may ask.  Ask your client to answer the questions under "test conditions."  If the deposition will be at your office, ask the questions of the client in the exact chair in the conference room where the deposition will be taken. 

4.         Keep in mind that clients are prone to forget prior accidents and injuries.  Get a claims history of every client that is going to be deposed. Ask the client about his or her claims history before sharing the results of the search with the client.  It gives you a good baseline for the client's penchant for honesty or the strength of the client's memory.

5.         For a variety of reasons that vary from client to client - pent up anger, a desire to be in command and control or a need to impress the defense lawyer with their intelligence - it is the rare client who does not offer boundless gratuitous information.   For some clients, months of preparation would not turn off the faucet.  But, in preparing your client for deposition, he or she must understand that random information that does not directly address the question may lead to the discovery of additional information that is not helpful to the case.  Underscore and underscore again that less is more.  There is, however, one caveat I think is important; the client should not take answering just the question to the extreme, particularly if the questions are for general background.   If the question calls for obvious follow up, instruct your client to give it.  If the defense lawyer is asking a simple question, such as "Do you know your wife's birthday?",  a simple "yes" without offering the date sends a message to the defense lawyer that the witness wants to do things the hard way.  A lot of defense lawyers are simply going through the motions in a deposition.  Do not start a confrontational relationship.  Let sleeping dogs lie.