It is not very often in our normal practice we are called upon to perpetuate the testimony of a client who will likely not survive to trial. In cases of mesothelioma it tragically is the case, but on occasion in a normal tort practice it can be necessary. I advised a friend recently in a case where perpetuation was necessary and here’s what I advised.

The approach you use depends almost entirely on the circumstances involving the client and the general style  or approach of the lawyer.  I can only tell you what my approach was which may not fit everyone.

To start with, the video set up for the deposition is really important.  Start with decisions about the camera position and image of the client as well as the background being filmed. I want to avoid filming only a  head shot of the client. I want more of the person  and I want to make certain the background isn’t  distracting or just a flat colored screen either. I want to avoid a strange camera angle with client lying on their side in bed or similar unnatural view  which will be distracting. I do not want a distracting angle shot. If in bed, I’d try using an adjustable hospital bed to provide more of an upright angle. The frame of the client is of importance.

Second, I am concerned about the client’s appearance and clothing. I don’t want a tee shirt with some slogan or baseball cap turned backwards or a totally ungroomed person. My goal is not to project an almost dying person. My goal is to project a person who will make as favorable impression as  possible and that begins with dress and general grooming. That does not  mean a suit and tie, it simply means something that fits the client’s condition in a clean, presentable and natural way.

Third, I want to use exhibits, not a lot, but things like photos the client can talk about and interspersed through the deposition. I want the client in a relaxed mode while breaking up the testimony with exhibits as much as possible.

Fourth, I want to make sure the client is prepared. I don’t mean rehearsed and memorized, but  someone who knows  what to expect in the questioning. I want to prepare the client as much as possible as I would any other client for deposition. On the other hand, this kind of deposition is limited in scope and length with some sensitive questions. I sure don’t want some unexpected client answer  of a damaging nature to my questions. I want the client to know what we are going to cover and why as well as what I’m looking  for in the answers, but the client’s feelings about it.

Preparation includes demeanor. I want my client to be seen as a good person who is  prepared for what’s happening instead of someone looking for pity. It’s not the client I want telling about the difficulties of what they have and are going through in this kind  of deposition. Instead, I want  the other family members, doctors  and minister to do their complaining and tell the sympathetic stories, not the client. The client’s story is that of a brave person in the face of everything who still can smile and is only concerned about other people including their family. No bitterness, anger or resentment of any kind.

Fifth, I would determine if there is legally mandated testimony only the client can give as to subjects like liability, causation or identification of product. If so, I would cover it as briefly as possible to  make  sure it  is covered in the testimony, but only the bare legal necessity. That’s because my approach is to not do the standard exam where you ask: background of who are you,  family history, work history, past medical, bills, future medical and treatment with description. That’s  for other family members or doctors to cover. All I care about with the client about their attitude and feelings.  The client’s testimony is brief and is about the journey to where they are now from a personal perspective and  without appeals to sympathy.

What sort of questions would I ask? It depends upon the client and what they would say. o. I’d make it short and about the client and not an informational exam. Here are some sample questions I might consider for a perpetuation deposition:

  1. Wanda, how long have you been married?
  2. Tell us about your husband
  3. What  would you like us to know about  your children
  4. When did you find out about the cancer? Tell us about that
  5. Tell us about the treatment the doctors gave you
  6. When did you learn there was nothing more they could do?
  7. Tell us about that.  What were your feelings?
  8. Tell us how this affected your family
  9. What are you most thankful for?
  10. What’s the one  thing you regret the  most?
  11. What’s the  worst thing about this cancer disease for you?
  12. What’s been the hardest thing for you go through?
  13. What’s your biggest worry and concern about your family after you have gone?
  14. How would you like to be remembered?

There is not a lot I’ve found on the subject, but this is a rough idea of how one might deal with this situation if you ever have to.


  1. Paul- Thank you for taking the time to write this article! It was very helpful. We are about to take a case were the guy is dying from cancer. He only has a couple of weeks to live. We have never done a perpetuation deposition before so don’t know what the rules are. We are not even in litigation yet so do we just set up the camera like you suggest and ask a few questions or is there more to it?

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