It’s Not a Conversation


This statement, or some variation of this statement, is how I begin every client deposition preparation session. It does not matter if it is a personal injury, business litigation or workers’ compensation case the most important idea I can place into my client’s head is that they are not having a conversation with opposing counsel. Nothing is worse than watching your client fall into conversation mode and start rambling on endlessly with opposing counsel. If a client talks long enough, then it is pretty much so guaranteed they will eventually say something that hurts the case. Defending the deposition is only about damage control. To combat the natural human tendency to converse, I use a few simple rules for my clients that I first learned from my friend Denny Moffett and have added to over the years.


The First Rule


Is that you must listen carefully to the question and make sure that you understand what you are being asked. Do not ever answer a question that you do not understand, just tell opposing counsel you do not understand the question. It is not unusual for a lawyer to ask bad and/or confusing questions. You have the right, and it is critical to your case, that you understand what you are being asked. I need you to pause briefly after every question and make sure that you understand the question before you answer.

This serves two purposes. It gives you the opportunity to make certain you understand the question and it gives me time to make an objection if it is a bad or unfair question. Part of my job today is to protect you from unfair questions.

An example of an unfair question is, “Yes or no Mr. Smith, have you stopped beating your wife.” There is no good answer to that question. However, the unfair questions are usually much more subtle than that. When I object you will know to be extra careful and really make sure you understand what you are being asked. Unless it is an objection based upon attorney client privilege you will almost always still have to answer the question even if it is unfair. I will not be able to talk to you about the objection or explain it, so it is all on you to make sure you understand the question. The objection will give me the opportunity later to go to the Judge, if we need to, and have the Judge remove your answer from the record if the Judge agrees the question was unfair.


The Second Rule


is that after you have carefully listened to the question and made sure you understand it, ask yourself if you know the answer. If you do not know the answer, then say you do not know the answer.

You will never hurt your case by not knowing the answer, but you can certainly hurt it very badly if you guess or speculate. This is harder to do than you expect, so be aware of your natural desire to answer the questions. We have all been taught since we were five years old that it is a good thing to try and answer questions even if you don’t know the answer. Today that is not a good thing. If you understand the question and you know the answer, then answer it honestly. You are under oath and you must answer honestly.

The Third Rule

is to only answer what you were asked, do not volunteer information. You are not here today in any way shape or form to “make” your case. Answer the question completely, but do it in as few as words as possible. Do not worry about clarifying anything or explaining
anything that was not directly asked of you. It is not your job today to clarify or explain anything that you are not asked. After today, if it becomes necessary, we have you testify via an affidavit to clarify or explain something that we need to get in front of the Judge. What will happen if you start rambling on and explaining things is you will eventually forget the question and what you have already said and you will say something that hurts your case.

Do you understand? If the client answers immediately and says anything more than “yes,” go over the rules again. The second to last thing I like to do before going into case specific preparation is to go through some of the tactics I have observed opposing counsel use over the years to confuse, frustrate and create disharmony between my clients and me. I have found clients do much better when they are exposed to these situations from me first.

One common tactic is for opposing counsel to go through the Complaint and asked legal questions like, “Please explain to me Mr. Smith why you think you have a factual basis to plead the affirmative defense of latches?” I would bet less than one in five attorneys could answer that one and not a single client could.

Another classic that seems fairly common is for opposing counsel is to go through my client’s MRI with questions like, “Of course you have gone through your MRI with your doctor?” The answer is invariable yes, then, “Please explain to me why you are claiming an acute injury when your MRI clearly states that you have degenerative disc disease and stenosis at L5-L6?” I have found it is far better to have covered and worked through these situations during preparation than to have my client stare at me like I have thrown them to wolves, while I sit there silently after making an objection and they are told they have to answer this ridiculous question. At the very end, when they are sufficiently nervous and concerned about how serious the deposition is to their case, I ask the client what they haven’t told me yet. By this point in time they know that I need to know everything in order to protect them.

My goal in every deposition is to give my client the tools they need to get through it and do as little damage to their case as possible. While every case is different and requires different specific preparation, I have found these basic rules arm my clients well to defend themselves, because it’s not a conversation.

The last rule is fairly simple and often forgotten: always remember to have fun—it’s only the most important day of your case (maybe your life).