Preparing (Including Your Client for Deposition - ALI CLE

1 PreparingYour Clientfor DepositionYOUR Client S Deposition is opponents have read all the books on dis-covery and know this. your opponents will goafter the unfiltered facts. They will be looking touncover those memory gaps, inconsistencies,improbabilities, embarrassments, weaknesses,and flaws present in every case. They will testyour case and your Client . They will be lookingfor ammunition for their dispositive motion, fortough settlement talks, and, if necessary, for Client is anxious ( characterized by ex-treme uneasiness of mind or brooding fear aboutsome contingency ). Let s face it, you re anxious,too. (The contingency you re brooding aboutmay be your fee.) To resort to the barbarity ofsports metaphor, this could be the ball M. Israelis a partner with Martens, Ice, Geary, Klass, Legghio, Israel & Gorchow, , in Southfield, Deposition preparation requires that you reduceyour Client s anxiety with information and practice.

2 (Including137 Useful Rulesfor Witnesses)Stuart M. IsraelYour Client s anxiety is rational, grounded inlife experience and common sense, exacerbatedby the myth and mystery of the litigationprocess. You need empathy and Client may be thinking this: This litigation involves high stakes. Truth, jus-tice, honor, principle, reputation, and money are onthe line. Omigod, what if I lose!?Lawyers are to be feared and distrusted. At leastthe other side s lawyers. I ve seen the movies and TVshows. They have these sneaky lawyer tricks to makeyou look bad. Or like a liar. Or like an idiot. What didI get myself into!?They can ask me anything. Are they going to showthat I did something wrong? Or embarrassing? Orstupid? Did I make mistakes? What if I forget some-thing? What did I get myself into!?I m going to have to speak in front of all these peo-ple, lawyers and the other side and a court reporter. Ihate that. I ve read the polls; people fear public speak-ing second only to death.

3 What did I get myself into!?Those opposing lawyers are nasty. Will they yell atme? Insult me? Badger me? Can my lawyer protectme? Am I strong enough to stand up to this kind ofabuse? What did I get myself into!?Where am I supposed to go for this Deposition ?What time? Where do I park? What do I wear? Whatshould I bring? Who ll be there? How long will thistake? What did I get myself into!? your job is to alleviate this anxiety, and to har-ness its energy for productive purposes. You ac-complish this through effective preparation consists of four steps: First, you must prepare yourself; Second, you must directly address yourclient s anxiety; Third, you must alleviate your Client s anxi-ety with information, about the law, the litiga-tion, the discovery process, and exactly what isexpected of your Client ; and Fourth, you must alleviate your Client s anxi-ety by demonstrating his ability to be an effec-tive witness. You accomplish this in three ways:practice, practice, YOURSELF To effectively prepareyour Client , you must first prepare yourself.

4 Youneed to know everything there is to know: thelaw, the facts, your theory of the case, your op-ponent s theory, and how all these things need a plan. You need to know how youwill support your theory, how your opponentwill support his, and how each of you will re-spond to the other. You need mastery of the de-tails: what the witnesses will say, what the doc-uments say, the who, what, where, when, whyand how. You need to know what is importantand what is not, and that sometimes what seemsunimportant at first proves to be very importantin the end. So, your preliminary task may besummed up in a simple rule: know ResponsibilitiesPerfect knowledge is not enough. You mustbe confident in the legitimacy of your role andobjectives. You are an advocate for your carries some ethical responsibility. Underthe applicable ethical rules (we ll use the Michi-gan Rules of Professional Conduct[ MRPC ] forpurposes of this article) you ve got to be com-petent (MRPC (a)), prepared (MRPC (b)),and diligent (MRPC ).

5 You ve got to keepyour Client informed about the litigation(MRPC (a)) and sufficiently educated tomake informed decisions (MRPC (b)). Youare obligated to act with commitment and ded-ication to the interests of the Client and with zealin advocacy upon the Client s behalf. , comment. You ve got to be loyal to yourclient (MRPC ). At the same time, you have aresponsibility to the truth. See, , (a)(4) ( a lawyer shall not that the lawyer knows to be false )42 The Practical LitigatorMarch 2001 Deposition Preparation43and MRPC (b) ( A lawyer shall [or] counsel or assist a witness to testi-fy ). Coaching the ClientThese ethical responsibilities are entirely con-sistent with coaching your Client to presenttruthful testimony clearly, logically, and persua-sively. In Preparing Witnesses, The LitigationManual: A Primer for Trial Lawyers (John G. Koetl,ed., ABA 2d ed. 1989) at 469, David H.

6 Bergwrites: There are lawyers who refuse to wood-shed witnesses at all, who just throw them upon the stand and let them tell their story. Theirclients most often are referred to as appel-lants . Berg continues: Everyone who testifieshas to be woodshedded. It is probably unethicalto fail to prepare a witness, and it is undoubted-ly cruel to subject anyone to cross-examinationwithout preparation. For more on this, seeStuart M. Israel, Coaching Witnesses, Vol. 10,No. 3 Labor and Employment Lawnotes 10 (Fall2000) and Stuart M. Israel, The Ethics ofWitness Preparation, Vol. 9, No. 2 Labor andEmployment Lawnotes6 (Summer 1999) (avail-able at ).Once you have the prerequisites perfectknowledge and confidence that preparation is aworthy and ethical endeavor you re ready toprepare your Client for the modern substitutefor medieval dispute resolution by personalcombat, the your Client S ANXIETY Malone and Hoffman identify the witness lev-el of confidence about his ability to perform inthe Deposition environment as the primaryfactor affecting the witness s performance.

7 David M. Malone and Peter T. Hoffman, TheEffective Deposition : Techniques and Strategies thatWork,at 155 (NITA, 2d ed. 1996). They concludethat the primary goal of witness preparationis to take burdens off of the witness s shoul-ders so that he can focus only on the substanceof his answers. Acknowledge the Witness s AnxietyTo accomplish this, you should build confi-dence first by directly addressing and acknowl-edging the legitimacy of your Client s that is done, you can move on to sub-stance, technique and practice. You might beginlike this:Pat, you may be nervous about your s natural. Everybody gets nervous. A depositionputs you in an unusual situation, sitting in a confer-ence room answering questions in front of a bunch ofpeople listening to your every word, with a court re-porter preserving it all for posterity. Who wouldn t benervous?We re going to prepare you for your we re done, you are going to be ready.

8 You llunderstand exactly what to expect. You ll under-stand the process and you ll be prepared to be an ef-fective witness. You ll even know where to preparation may not eliminate all your ner-vousness, but when we ve finished you ll have theconfidence that you are ready and prepared to do agreat job. Okay, that s our objective, to get you questions so far?EDUCATE your Client You will buildyour Client s confidence with breeds anxiety. Here are some thingsyou might want to discuss with your Client (notthe details and technicalities, but the concepts).1. The MundaneWhat may be trivial or commonplace to youmay be a source of anxiety to your Client , whountil recently thought being deposed is whathappened to Czar Nicholas in 1917. Here aresome things to make clear for the Client : Where to go, how to get there, and where topark; When and where to meet you before the de-position; What to bring; What not to bring; What to wear; Who will be at the Deposition , and why; What the court reporter does at the deposi-tion and what the transcript is; Where everyone will sit; What discovery is in general and what a de-position is in particular; What the cross-examiner s objectives andtechniques are; What your role is, and how you are yourclient s ally; How long this will take; and The arrangements for things like water, cof-fee, telephone access, messages, food, the re-stroom, breaks, and so The Scope of DiscoverySeeMichigan Court Rules of Civil Procedure( MCR ) (B)(1) and compare current Fed.

9 P. 26(b)(1).3. The Nature of the ExaminationFed. R. Civ. P. 30(c) (Generally cross-exami-nation may proceed as permitted at the trial. Testimony is on oath or affirmation and gen-erally is taken stenographically. ) (C). Explain the difference between non-leading ( What color was the car? ) and lead-ing ( The car was blue, wasn t it? ) questionsand who can use which when. Fed. R. (c); Michigan Rules of Evidence ( MRE )611(c)(2) ( Ordinarily leading questions shouldbe permitted on cross-examination ).4. ObjectionsFed. R. Civ. P. 30(c) ( All objections made atthe time of the the manner oftaking it, to the evidence presented, to the con-duct of any party, or to any other aspect of theproceedings shall be noted by the officer uponthe record of the Deposition ; but the examina-tion shall proceed, with the testimony beingtaken subject to the objections ). (C)(4) (generally evidence objected to ongrounds other than privilege shall be taken sub-ject to the objections ).

10 Fed. R. Civ. P. 30(d)(1) ( Any objection duringa Deposition must be stated concisely and in anon-argumentative and non-suggestive man-ner. A party may instruct a deponent not to an-swer only when necessary to preserve a privi-lege, to enforce a limitation directed by thecourt, or to present a motion under Rule30(d)(4) [addressing motions to limit examina-tion conducted in bad faith or in such manneras unreasonably to annoy, embarrass, or op-press the deponent or ] ).Fed. R. Civ. P. 32(d)(3)(A); MCR (C)(3)(a)( the competency, relevancy, ormateriality of testimony are not waived by fail-ure to make them before or during the taking ofa Deposition , unless the ground of the objectionis one which might have been obviated or re-moved if presented at that time ).Fed. R. Civ. P. 32(d)(3)(B); MCR (C)(3)(b)( Errors and irregularities occurring at the de-position in the manner of taking the Deposition ,in the form of the questions or answers, in theoath or affirmation, or in the conduct of parties,and errors of any other kind which might becured if promptly presented, are waived unlessseasonable objection is made at the taking of thedeposition ).