HOW TO PREPARE YOUR CLIENT FOR THEIR DEPOSITION by Lita Luvera
“By failing to prepare, you are preparing to fail” Benjamin Franklin
In our office, my law partner and wife, Lita Barnett Luvera, legal responsibilities included preparing clients and witness for their deposition. The other lawyers relied upon her for the preparation and she was very good at it. Lita had a procedure which she followed and has outlined for full explanation. Here is the procedure she followed in her words.
INTRODUCTION
Your goal is to become your client’s new best friend in the sense you need to establish a bond of trust and friendship. This will ensure you can tell their story honestly in the most persuasive manner. Remember, these cases represent to the client and to the jury a true-life tragedy. To present your client and their case successfully it is important to think about yourself as a director of an important Movie where your client is the star. It isn’t just the facts of the case that are important, but how the client looks, how they communicate, and importantly how the facts are framed. You need to help your client in all of these aspects.
Trials are a battle of impression, and once the impression is created, it is lasting. You never get a second chance to make that first impression. We know that once the juror forms an impression of your client and their story, it will influence how they view the evidence and issues in your cases. There are proven ways that are helpful in preparing your client to be the best they are capable of being. An often-overlooked aspect of preparing your client is observing with a critical eye everything about their appearance that could be modified. You need to pay attention to their Demeanor when telling their story. Are they angry? Are they overly emotional? If dealing with a couple, who is the best storyteller? Who has the best recall of the facts? How do they relate to each other? Does their body language signal a loving devoted couple or an estranged distant couple? All these things need to be discussed with the client.
Unfortunately, client preparation is like weight loss. It takes a great deal of time and dedication to the process. Too often, lawyers tend to schedule an hour or two in their office on the day of the deposition to prepare their client. They give the clients the rules of the Road and offer the standard speech they give to every client. Then, they wonder why the client did so poorly. This is a recipe for failure. Or, at best, a poor performance.
CLIENT PREPARATION SHOULD BEGIN AT THE INITIAL CLIENT INTERVIEW
At this initial Client interview, I always included a lengthy Witness Impression evaluation. I would fill this out right after the meeting and it would include detailed information about their appearance, attire, communication skills, demeanor, distracting mannerisms and phrases, and anything else that was troubling me during the interview I would ask myself, Did I like this person? Did I believe this person? Did I want to help this person? In the areas I wanted to see improvement I would make suggestions to myself and save this in the clients file for future use.
The importance of this step is the impression you form at this meeting, is likely to be the same as the first impression of Defense counsel at the deposition, and the jury at Trial. Over time, in dealing with your client and the facts of the case, we tend to overlook these things that bothered us initially. We see the client’s testimony as less important than the liability of the case. Often times we tend to wait until the Defense schedules their deposition to even begin preparing them.
ALWAYS HAVE A DETAILED WRITTEN CLIENT QUESTIONAIRE
If the case was accepted by our firm, I would include in the package of information, a detailed Client Confidential Questionnaire. This document will have thing I anticipate the defense to require in the interrogators but will go beyond that to cover very personal things. Some examples would be:
- Previous marriages
- All past injuries, surgeries and Hospitalization
- All past civil and criminal lawsuits (and then follow-up with a computer docket check for accuracy)
- All work history
- All educational history
- Any awards received in lifetime
- Military experience
- Any psychological counseling, marital counseling
- All hobbies
- Any written statements given to anyone about the caseAny diary entries
- Any photographs
- Client’s version of the ‘facts of the case’
This document will not only assist your staff in answering the interrogatories, but it will also be the core information for you to know a great deal of background and History about your client’s life prior to this tragic change in their life.
SCHEDULE A MEET AND GREET IN THE CLIENTS HOME
This meeting should be scheduled early in the case to learn the client’s story in greater detail and the focus should be on Damages not Liability. My goal at this meeting was to get the client to relax. I would usually bring a token gift. Perhaps a small plant, coffee, or sparkling water. I assure them they cannot make any mistake today. I ask them what are they are worried about regarding the deposition and try to alleviate their fears. I emphasis that the only way to help them is to get to know everything about their life, so I can be their voice.
Lawyers are notoriously poor listeners. At this visit the client should be doing 80% of the talking. You should be listening and observing the client and the surroundings of the home. It is not a time to interrupt or correct or instruct them. That will come later. You are in their home to learn about the client, their life pre and post injury, and how the injuries have impacted them. Emphasize repeatedly the importance of being truthful. They must understand we can always deal with the truth, but never dishonesty.
Going to their home is the only way to get a true picture of their prior and current situation. Look at photographs and have them tell you stories about them, look at their walls for inspiration of what they enjoy, go into their yards. See first-hand what their hobbies and passions were. Not only will you get a much more thorough understanding of your client, but you will also find exhibits for Deposition and trial that you otherwise would have never discovered.
Go into their closet or have your paralegal do this for you. Select what you want them to wear when they are going to testify. Leave nothing to chance. You may have to take them shopping. This is the time to tactfully cover the grooming modifications. If you cover this at the end of the day, when a friendship and bond has been created, I have never once had a client resist any suggestion I made about grooming and attire.
SCHEDULE PRE-DEPOSITION MEETING 3 DAYS BEFORE DEPOSITION:
By scheduling the pre-deposition meeting three days before, you have time to see if the client has followed up with the suggestions you made regarding grooming.
This is the meeting where you go over in detail all the questions you anticipate the defense lawyer will ask. You review interrogatory answers and any statements, and cover the issues in the case. Go over the exact procedure of what to expect and who will be attending. Cover the style of the defense lawyer if that is important.
Before your client’s deposition, you should know your case inside and out and prepare your client for any difficult questions you think may come-up. If you have prepared your client correctly there should be no surprises
I often would perform a Mock deposition with the client. Be careful not to create a rehearsed situation, however. This is the time I give them The Rules of the Road some of which include:
- Listen carefully to the question and be sure you understand it
- Do not attempt to answer you do not understand
- Do not guess or speculate
- Do not volunteer information unless required to clarify
- Be calm, be courteous
- Never argue or get angry
- Do not exaggerate, speculate or guess
- Avoid being overly emotional
- Avoid closing the door to later clarification when asked questions like “Is that all you remember”, Is there anything else you would like to add?” The answer should always be “that is all I can think of right now.”
- When appropriate be positive and confident. Avoid “I think” when you remember or know.
This is the meeting that will generate fear and angst with your client. Because you will have given them lots of advice and covered all their anticipated testimony, they will go home and start to worry about their performance .I always would give the client my cell phone and tell them there is no question they should hesitate to call me.
DEPOSITION DAY
By then, your client should completely prepared and confident, but inevitably will be nervous. I usually allow 30 to 45 minutes prior to their testimony. I will go over the concerning issues I know will arise and ask them if they want to go over any testimony. I then spend the rest of the time telling them that they are ready and to be calm, confident, and honest. I give them some breathing techniques to calm their fears. I then leave them to have some quiet time to collect their thoughts.
CONCLUSION
Remember that to the world you may be just one person, but to your client, you are their world at this critical time in their life.
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