Depositions are critical to the discovery process, but the fact is, most witnesses have never given testimony before. For that reason, many will find depositions to be intimidating. To avoid mistakes during the proceedings, it’s important to spend time preparing your witness beforehand. After all, deposition testimony is the best opportunity for your client to establish their credibility and share their side of the story!
In this article, we’re going to share some of the industry’s best-kept secrets for deposition preparation! Let’s get started!
Explain the Basics
Before you dive into the specifics of the case, take some time to review the fundamental steps of the deposition process. Be sure your client understands the purpose of the oath they will take before testifying, as well as the consequences of perjury. Next, create a list of all the expected participants. If the opposing party will be present at the deposition, explain to your client that they won’t be permitted to speak outside of the deposition. Finally, if your deposition will be held in person, remind your client about what they should wear and what time they should arrive.
The Key Guiding Rules for Your Client
After you’ve given the client an idea of what to expect, you can improve their performance by sharing some of these guiding rules for deposition behavior:
#1 – The deposition is not a conversation
It’s not uncommon for opposing counsel to approach your witness with a friendly and welcoming attitude. If your witness is caught off-guard by this behavior, they may be lured into chit-chat that could damage your case. You can avoid this problem by explaining to your client that the attorney for the opposition is not their friend, and the deposition is not a conversation. While testifying, they must listen closely to the question and respond carefully and precisely.
#2 – Never share second-hand information
In casual conversation, it is human nature to repeat second-hand information as if it were fact. Unfortunately, this creates significant problems in a deposition environment. Clients should never present information as fact unless it is directly related to something they personally witnessed or experienced. Before your client is sworn in, carefully explain the difference between first and secondhand information.
Depending on the specifics of your case, you may need to give a few examples of the limitations of first-hand information. For example, if you’re representing the accident victim in a personal injury lawsuit, they may want to repeat things they’ve heard from their doctor about their condition. Explain to them that it is perfectly acceptable to share these statements as long as they mention their doctor was the source of the information.
#3 – You don’t have to remember everything
One of the most common strategies used during deposition questioning involves repeatedly asking the witness to elaborate on their answer to a question. Typically, these questions will require long responses and opposing counsel relies on witness uncertainty. Instead of guessing or speaking in absolutes, be sure your client understands that they aren’t expected to remember every detail of their case. It’s much better to say “I don’t recall” than it is to speak with confidence, only to be proven wrong. At the same time, this statement can’t be used as a crutch. Your client should only claim ignorance in response to questions where they truly don’t know or recall the answer.
#4 – You are always speaking to the jury
In a deposition, your client will feel as though they’re answering questions for the opposing counsel. While this is true in the literal sense, it overlooks the true value of deposition testimony. Before they’re sworn in, explain to your client that they should always act as if they’re speaking directly to the jury. Whether or not the case actually proceeds to trial, it will improve their chances of getting a successful verdict if they are informative, polite, and even-tempered.
Thanks for reading! If you enjoyed this article, please feel free to share it on social media. Lastly, when you plan your next deposition, don’t forget to take advantage of our plentiful deposition tools, including remote court reporting, concierge remote exhibit management, remote videography, and full-time tech support for your remote depositions, arbitrations, court hearings, trials, and other proceedings.