Depositions are an important part of the litigation and discovery process. Critical testimony can be elicited under oath from testifying witnesses and later used at trial and in pre-trial motions. Clients who are going to have their deposition taken and the attorneys defending them at their depositions should make sure they are well prepared. Here are some important preparation tips:
1. Meet Ahead of Time - Set up a meeting to prepare for the deposition a day or two before the deposition takes place. Make sure there is privacy where you are meeting (the attorney's office is usually a good place), as you don't want your conversations to potentially be overheard. You never know who you might run into or who could overhear you in a public place (like a coffee shop). Take caution on making sure the setting for the prep meeting is private and confidential.
2. Appropriate Attire - The attorney should provide the client with some guidance on how to appropriately dress for the deposition. Opposing counsel taking the deposition will be sizing up your client as a witness. Depending on the nature of the lawsuit, it may be appropriate for your client to wear a suit, dress business casual, or wear their work uniform.
3. Anticipated Questions - The attorney should prepare the client to answer some general and open-ended questions, and the client also needs to be ready to respond to more confrontational, cross-exam type questions on key issues. You should engage in some simulations and role play ahead of time.
4. What Questions the Clients Must Answer - Here it is important to know that the client generally must answer all the questions asked unless the attorney specifically instructs the client not to answer (this is typically limited to when questions infringe on the attorney-client privilege).
5. Process of Question and Answer - Clients should do their best to relax during the deposition, allow the opposing attorney asking the questions to fully complete the question, give their own attorney time to make appropriate objections to the question, and then answer the question being asked and generally not offer additional information. Sometimes the attorney asking the questions will pause for an extra period and try to get the deponent to "fill the silence" and offer additional information he or she was not asked to provide in the first place. The client should not fall into the "filling the silence" trap.
6. Taking Breaks - Depositions can be uncomfortable and exhausting, especially for the witness being deposed. The attorney and client should make sure that the client takes breaks every so often throughout the deposition session as needed. Typically a break cannot be taken while a question is pending, as that can be seen as providing the client the opportunity to be improperly coached by the attorney on how to answer the question during the break. If you're the client and you have been answering questions for a lengthy period of time, ask to take a break and you should be provided one. Your attorney should also observe you and pick up on when it is a good time for you to take a break.
7. Answer Questions Based on Your Own Personal Knowledge - If you are the client being deposed, it is okay if you don't know the answer to a question. If your honest answer is "I don't know," say that. If you don't remember, it is okay to say that. If you are asked a question that you don't know the answer to based on firsthand knowledge, avoid speculation as to what you think the answer might be. Only answer what you know.
8. Be Truthful - Remember, at the deposition the client is answering questions under oath. This is the client's sworn testimony under penalty of perjury. Importantly, the facts are the facts in any given case, and it is the attorneys' jobs to take the facts as they are and apply the law. As the client who is being deposed, it is your duty to be truthful.
If you follow these general tips, the deposition process will go more smoothly, will be more productive for the parties and their counsel, and will prevent legal and ethical violations associated with being untruthful. Attorneys and their clients who are well prepared for depositions can only help their case.
Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney. It is likely considered advertising.
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