Preparing Clients (And Yourself) For Depositions

1 The Practical Litigator | 31 Bradley C. Nahrstadt Experience is not what happens to a man. It is what a man does with what happens to him. Aldous HuxleyPreParing and Presenting a client for a deposition can be a humbling experience. Doing these things successfully takes time, practice, experience and a good deal of patience. No article can teach an attorney everything he or she needs to know about Preparing and presenting a person for a deposition . But, hopefully, af-ter reviewing this article, you will find yourself equipped with a great deal of knowledge and a number of the skills you will need to handle what can often be the most chal-lenging aspect of civil defense litigation.

2 The key to effectively Preparing and presenting a cli-ent for a deposition is to know the case. You must review the pleadings, the discovery responses of all parties, all records relevant to the claim or defense the deponent is expected to testify about, and the relevant case law. Know what you plan to do with the case once discovery is over (file a motion for summary judgment, try to obtain a fa-vorable settlement, etc.) and make sure that the deponent is prepared to testify accordingly. Before the deposition , you should also learn all you can about the other side s case. Review records the depo-nent may be asked to testify about to ascertain possible problems the examining attorney will be asking about.

3 If possible, discuss the case with your expert witness. Learn Bradley C. Nahrstadt,a partner with Williams Montgomery & John Ltd., in Chicago, focuses his practice on the defense of high-stakes products liability, premises liability, insurance coverage and bad faith, and commercial claims. Mr. Nahrstadt has litigated cases involving a wide variety of products, including fine grinding machines, silicone breast implants, dietary supplements, automobile axles, hydraulic automotive lifts, hydraulic jacks, brakes, clutches, child safety seats, chemical floor wax strippers, signal components, genetically engineered corn, rewinders, pharmaceuticals, thermal oxidizers, gravimetric feeders, welding rods, and contact lens solution.

4 Mr. Nahrstadt has served as regional counsel for a national testing laboratory and currently serves as regional counsel for a large consumer of welding rods, a leading optical manufacturer, and a major brake and clutch manufacturer. He can be reached at Clients (And Yourself ) For Depositions 32 | The Practical Litigator May 2010all you can from the expert regarding the strengths and weaknesses of the other side s position. In addition, if possible, read reports from the other side s experts; find out what they say your client did wrong. If a case involves a location, for example, the scene of an accident or the scene of a physical as-sault, I always meet with my client at the scene of the occurrence.

5 This meeting should take place several weeks or months before the deposition . Meeting at the scene allows you an opportunity to meet with the client (and develop a rapport with the defendant), allows you an opportunity to learn the client s version of events, and allows you to see the actual scene of the occurrence. I find that in most cases the attorney for the other side has not visited the scene before the commencement of Depositions and your visit will provide you with a strategic advantage over the opposing attorney you will know what the scene looks like in terms of layout, traffic signals, shrubbery, turn lanes, and so on.

6 During this initial meeting, you should explain to the client what she can expect regarding the course of the litigation. Explain that she will have to give a deposition and explain what the deposition will entail. Have the client tell you, in her own words, what happened on the day of the accident, what went into manufacturing the product in question, how long she owned the building where the crime occurred, or whatever the case may be. You should use this opportunity to learn all you can about what the witness knows and remembers about the case. Reassure the client that you are on the case and that you will be vigorously representing the client s interests.

7 Once a date has been set for your client s de-position, you need to communicate the date to the client. You should instruct the client to show up at the office at least four hours prior to the deposition start time (more time should be allowed if the cli-ent is foreign, has a hard time communicating, is exceptionally young or old, or is of limited mental ability). Use this time to really prepare the client to testify under oath and to reinforce those things discussed during the initial meeting. At the beginning of the preparation session, explain to the client what the deposition will en-tail. Explain where it will take place, who will be present, the functions of each person in the deposi-tion room, and the fact that the client will be under oath.

8 Explain what role you will play: taking notes, making objections, marking exhibits, and so on. Explain that all the testimony will be transcribed and that it can be used later to support or defeat motions for summary judgment, for impeachment, and the like. I always use this preparation session to depose my own client. I actually ask my client every ques-tion I think the opposing attorney will ask. I want to know, before the real deposition , just what my client is going to say. Ask the client everything, in-cluding questions about crimes and misdemeanors, use of alcohol, and other areas of potential embar-rassment. If there is going to be problem testimony, you want to know about it before the deposition so that you can figure out a way to deal with it.

9 Make sure you go over particularly troublesome areas of testimony two, three, or four times. Make sure the client knows what he needs to testify about and why the answers he gives are so important. Repeat-edly emphasize that the deponent needs to tell the truth, but also remind the deponent that she does not need to guess, speculate, or make up answers. Also remind the deponent that she does not need to answer more than is asked of her. You must make sure that you go over problem areas with the deponent and figure out a way to minimize or neutralize the problems. Discuss in-consistencies in the records or prior statements and try to resolve them.

10 Figure out how to put any al-leged inconsistencies in the best possible light for the defense. deposition Preparation | 33 Review any documents authored or approved by the deponent with the deponent. Discuss and review documents that you think the witness will be questioned about. Caveat: if you are Preparing a witness who is not your client to testify at deposi-tion, do not allow the witness to review privileged documents, since doing so will likely waive the priv-ilege. Finally, you should explain to the deponent how different ways of saying the same thing can either help or hurt a case. For example, The light turned green and I proceeded into the intersec-tion sounds so much better than The light turned green and I took Likewise, The patient s weight problem was a serious health concern, so I recommended a weight reduction program and explained the health risks involved sounds much better than The woman was incredibly fat so I put her on a diet.