The receipt of a notice for a client’s deposition usually sets off a chain reaction of familiar events in most law offices across the country. The deposition is calendared. Materials requested in the notice or accompanying subpoena are collected. And client preparation begins in earnest.
While few lawyers would forego in-person deposition prep sessions, a well-drafted deposition letter can go a long way toward preparing clients for their upcoming deposition.
The overriding purpose of deposition preparation is to ensure that the testimony elicited by opposing counsel does not impair the client’s litigation objectives any more than necessary. However, this goal must be accomplished against the backdrop of the lawyer’s ethical obligations to the client and the court. Competent representation means that the deposition witness is well-prepared to testify honestly and thoroughly – with credibility that a jury will appreciate – while giving the opposing party as little trial ammunition as possible. It’s a balancing act.
Ethical Guidelines for Deposition Preparation
Competent representation, defined in part as “thoroughness and preparation reasonably necessary for the representation,” is required by Rule 1.1 of the ABA Model Rules of Professional Conduct. Rule 1.2(d) commands that a lawyer may not assist a client in “conduct that the lawyer knows is criminal or fraudulent.”
Rule 3.3 contains two ethical obligations relevant to deposition preparation. First, a lawyer may not knowingly offer evidence that the lawyer knows to be false. Second, if false testimony is offered, “the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”
Per Rule 4.4(a), a lawyer may not “use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” Finally, lawyers may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” Rule 8.4(c), or “engage in conduct that is prejudicial to the administration of justice,” Rule 8.4(d).
Keeping litigation objectives and ethical boundaries in mind, an effective pre-deposition letter to the client might include:
- the date, time, and location of the deposition
- the date, time, and location of any in-person deposition preparation sessions
- advice on proper dress and grooming
- advice on coping with anxiety
- in the case of a remote deposition, a description of the minimum Internet bandwidth and other technology requirements
- an explanation of the role of the court reporter and the swearing-in process
- an explanation of deposition basics and the significance of this particular deposition in the lawsuit
- an explanation of the role of opposing counsel and their anticipated deposition objectives and behavior
- a summary of information that opposing counsel already have in their possession (e.g., interrogatory answers, documents produced during earlier discovery)
- a discussion of the proper ways to answer opposing counsel’s questions; the witness should resist the urge to “explain” the case to the opposing attorney. Listen to the question. Answer the question. Stop speaking.
- a reminder of the importance of not sparring with opposing counsel or guessing at the answer to a deposition question
- an explanation of the process of attorney objections, and the need to stop testifying until the objection is resolved
These measures cover the minimum bases to be covered in deposition preparation. Special situations, such as remote or video depositions, will likely call for additional preparation in areas of appearance, exhibit handling, and technology expertise.
Match Preparation to the Witness
Lawyers who routinely deal with clients who are unfamiliar with the legal system will need to cover a lot of ground to adequately prepare those clients for their deposition. They’re nervous, likely first-time witnesses, who do not understand the legal system in general or the deposition process in particular.
On the other hand, just because a lawyer’s client might be a seasoned deposition veteran is no reason to cut corners on preparation. Busy witnesses such as corporate executives, government officials, insurance adjusters, or experts must, at a minimum, be (a) educated on the importance of their testimony to the case, (b) educated on the legal posture of the case and discovery materials accumulated thus far, and (c) briefed on questions expected to be asked by opposing counsel.
These days social media is a fertile source of deposition questioning. It’s wise to review with all witnesses their social media profiles.
All in all, that’s a lot of ground to cover. Lawyers might consider the attention span of their witness and whether a detailed, multi-page deposition preparation letter is really the best way to impart critical pre-deposition particulars. One alternative is to divide the necessary information into a series of written communications, culminating with an in-person preparation session at the lawyer’s office (or via Zoom) and a final letter with the deposition time and place and a list of materials to bring to the deposition.
Finally, if the firm has the financial resources to do so, creating a video tutorial describing the deposition process could produce better-prepared deposition witnesses in many circumstances. According to the National Literacy Institute, 21% of adults in the United States are illiterate. Fifty-four percent of U.S. adults read English below a sixth-grade level. There’s a significant chance that written materials will not produce a well-prepared deposition witness.
