It is my considered view that litigation lawyers fall broadly into two categories: (1) those that adequately prepare their clients to testify in deposition and trial, and (2) everyone else. I have crossed both types of advocates and, without exception, lawyers who did not spend the time to properly prepare their client (or other witness) for testimony were corner-cutters most everywhere else in the case. Like most defense lawyers, I eat corner-cutters for lunch.
There may be barriers to proper preparation of a client for deposition or trial testimony. The biggest is usually the client. Clients who are not often involved in litigation have a difficult time understanding the need for serious testimony preparation. It’s time-consuming, expensive, repetitive, exhausting and generally irritating. After all, these clients reason, I’m just going to be asked to tell the truth, right? How hard can it be?
Reluctant clients need to understand the importance of adequate preparation. A deposition that goes bad, if it’s an important witness, can be a game-changing event in a case. Fortunately, many clients will heed our advice and take testimony preparation seriously.
Experienced lawyers differ on timing and methodology of testimony preparation. I recently heard a “rule of thumb” of 2 hours of preparation for every anticipated hour of testimony. This might work as a general guideline, though we seldom know beforehand how long a deposition is going to last. I prefer allowing lots and lots of time for preparation, and scaling back the actual time spent based on the client/witness progresses. Some clients/witnesses are naturally good at the process, others are not so good. I like to think I know how to improve those who are not so good, and I’ve also developed various methods, which I might share later, for helping increase a client’s comfort level in giving his or her testimony. Typically, practice alone—using credible mock deposition or cross-examination questions—makes a client more comfortable. When a client or other witness is comfortable and relaxed, he or she not only gives better testimony, but he or she feels better about the process. This, in turn, tends to build client trust in my skills.
Our conduct in defending the deposition itself can also engender (or erode) trust. Our clients need to know we’re there, alert and in control throughout the deposition. Effectively maintaining control of the process, strategic objecting, etc. are subjects for other posts. However, in addition to being alert, I think it’s important to maintain and convey a sense of calm throughout the deposition, even if opposing counsel is nasty or taunting. I’m of the mind that it is preferable to terminate a deposition that has become uncivil (and seek a protective order), rather than subjecting my client to angry arguments between the lawyers. It is rare, I’ve found, that a heated argument among counsel during a deposition will accomplish much beyond unnerving my client and leading to potentially harmful testimony.