What They didn’t teach you at the Law School
Law School prepares you to think, write and research like a lawyer, but once you’re at the door of a law firm or a courtroom, there’s a whole new set of skills you need. The present series of articles aims to enrich a new lawyer with all these skills in order for him/her to excel.
Proactive defence strategies are essential to a successful defence of a deposition. An efficient and effective deposition-preparation session with your client ensures a successful deposition.
However, you must prepare yourself before you prepare your client. You need to evaluate your client as a witness. During the interactions with your client, it is likely that you have evaluated the sophistication level of your client and what type of witness your client is going to be (e.g., nervous, soft-spoken, talkative). Use these assessments to plan your preparation session. So if your client has never been deposed before, it will be necessary for you to spend additional time alleviating your client’s anxiety by explaining the process: who will be present at the deposition, and how the client should conduct himself or herself.
It is important to analyse what the opposing counsel hopes to gain during the deposition of your client. Make a list of the key points that your adversary needs to make and the hardest questions that your client can face. Anticipate potential lines of questioning, as well as the documents that may be used during the deposition. Review with your client his or her responses. Also identify for your client some helpful tips, reminders, and key phrases or documents that will help to reduce his or her anxiety as well as provide a clear record.
Identify the potential sources that can help your client refocus during the deposition and respond to difficult questions effectively. For instance, if your client has prepared various documents that are likely to be sources of questions from opposing counsel, then you must review those documents so that the client’s testimony is consistent with them. Also tell your client to refer to those documents during the deposition, instead of trying to recall what he or she was thinking at a certain time.
Defending a deposition and providing deposition testimony is not merely a reactive exercise. Identify the facts necessary to prove or defend your case and focus on those facts to which your client can testify. So, if you know that you will be filing a motion for summary judgment on some or all of the plaintiff’s claims, then determine now, prior to the deposition, what evidence you will need to draft a successful motion. Educating your client on these topics and reviewing potential lines of testimony in advance of the deposition will make the future prosecution or defence of the case easier.
If other witnesses have been deposed, consider what they have said about your client. In litigation, consistency or inconsistency with both documents and other testimony is important.
Evaluate the scheduling of the preparation session. Identify the best time to meet with your client, as well as how long you anticipate the meeting to last. Make sure that you give them enough advance notice of the deposition and the preparation session so that they may schedule accordingly. This also goes a long way in building rapport with your client because it demonstrates that you are respectful of their time.
Typically, the day before the deposition is the best time to schedule a preparation session. This ensures that the information is fresh in your client’s mind, and also it provides an opportunity for him or her to identify any questions or concerns that can be addressed prior to the deposition.
Once the preparation session is scheduled, the first part of any thoughtful client meeting is providing your client with a road map of the meeting. This helps you and your client to stay organized and efficient. An effective preparation session should include the following topics: (a) if necessary, a review of the scope of your representation and an explanation of the attorney-client privilege; (b) a review of the deposition process and guidelines to a successful deposition, including analysis of relevant documents and a mock cross-examination; and (c) identifying any areas of concern or discomfort.
At the outset of the preparation session, it is helpful to remind your client that any communication between you and your client is privileged. This will aid in a candid exchange and allow for a more productive meeting.
Depending upon your client’s prior litigation experience, it may be helpful to explain the discovery process and the purpose of a deposition. For example, explain where the deposition will take place, that he or she will be placed under oath, opposing counsel will ask questions, and, as appropriate, you will make objections. Also review with the client how deposition exhibits are handled.
Once your client is comfortable with the procedure of a deposition, review the guidelines like tell the truth; speak audibly; talk slowly; think before you speak and so on and so forth.
Once your client is comfortable with the process and you have reviewed the guidelines and relevant documents and engaged in some mock cross-examination, ask your client whether there are any issues or topics with which he or she is not comfortable. Often, the deposition-preparation session can be overwhelming for the client. Allow your client a few minutes to digest the information and reflect on whether there is anything that he or she would like to review before the end of the meeting. Provide some encouragement before sending your client on his or her way.
An effective deposition-preparation session requires planning. Take advantage of this opportunity by preparing yourself and your client so that the deposition is successful.