Pregaming Your Client’s Depo, Parts 1 & 2: Interview with my mom and free templates

Prepping your client for their deposition=probably the most important part.

The most discouraging thing about it  is when you spend hours or even a whole day preparing your client for their deposition, cover everything important, and then they do all of the things they aren’t supposed to anyway! Gah!!! I think as attorneys, we forget how nervous people get in that kind of situation, because we have become immune to it. I mean, seriously, what is the big deal? Why is it so hard to follow simple instructions, for crying out loud? In order to find out, I interviewed my mom.

My mom was in a bad car wreck when I was a 2L. She was represented by a family friend, who is a very competent plaintiff’s attorney. Her deposition was taken by State Farm ahead of trial. Here is our facebook chat about what made her nervous and what would have helped:

MeWere you nervous before your deposition?
Mom: Yes, very.
Me: What made you nervous?
Mom: Never having done it, so the unknown; worried about not giving the correct answer or even if it was true, I was worried my words would get twisted.
And the thought of the court reporter made me nervous for some reason
And just the stiffness/officiousness.
Me: The court reporter is usually the nicest person in the room. Why did that make you nervous?
Mom: I’m not sure , she was very pleasant, but I think trying to remember to speak my answers and not just nod or use my hands.
Also, I think trying to answer truthfully with out giving him too much Information.
Me: So, there were just a lot of things to remember at once?
Mom: Yes, and I was in a great deal if pain with it.
It is a very unfamiliar situation and kind of like when the police want to ask you questions.
Even if you are innocent you are still a nervous wreck.
Me. I know [your attorney] showed you a video and talked to you about it ahead of time. He probably told you all the same things I tell my clients.  What else could have been done to make you feel better about it?
Mom: Dress nicely but be comfortable, having a drink or light snack ahead of time.
Giving everyone a minute to acclimate , get comfortable.
Being able to have your dad there would have helped. Not sure if he could have been there?
Me: No, he couldn’t be in there with you. 
Mom: Ok, it would be a help if you could have someone like that, but since you can’t I guess that won’t help. And not having the other lawyer act like you are lying with looks or just the way he reacts. I kept feeling like he thought I was lying when I wasn’t. It is just such am intense situation , very nerve racking.

Me: So the other attorney was trying to put you on the defensive by acting like he didn’t believe you? 

Mom: I felt like he was, especially when he asked questions I couldn’t remember. I don’t know answers a dozen times starts to make you look like you’re lying, as he jots constantly and” uh-huhing” and “I seeing.” I think you can explain it all you want, but until someone does it, they will be nervous.

That’s most of our conversation. I did not include my mom’s other suggestions which rapidly devolved into the ridiculous, including:  being allowed to crochet while answering, having a “bowl of pretzels and a Coke handy,” and requiring opposing counsel to wear an Andy Griffith mask.

But, there were some pretty fair criticisms of why people are wary of attorneys. Plus, it is strange to do something you do every day–talk–but not be allowed to do it in a normal way. I think Mom is right: you have to do it to really get it.

Which brings me to my pregame process, in all its detailed glory. 

I like to send a pre-deposition letter, after I have scheduled a pre-deposition meeting. The letter includes a guideline pamphlet. This gives my client a chance to read about a deposition ahead of time, digest the intellectual part of it, and think about questions. Then, I do practice deposition questions with another attorney at my firm defending the pretend depo.

Part 1: The Letter  Ahead of the Meeting

Here is my enclosure letter, sent after our meeting is planned. Feel free to copy it and make it yours for free; however, I would not turn down something to barter in exchange, say…decent wine or a box of truffles. It’s only fair.

Dear Client,

As you know, your deposition is coming up soon. [It will likely be scheduled during the week of__] or [It has been scheduled for ____________, at _____________ for____________(time)].

[We have already planned to meet together on _____(date), at _____(location), for ___(time),  in order to go over the process of your deposition. You should plan to be there for about [2] hours] or [Please call or email me as soon as you can to set up a meeting].

During our meeting, I’m likely going to practice some questions and answers with you. I may even ask another attorney from my firm to practice with you too. The purpose of practicing questions is not to get coached on what to say (I always want you to tell the truth to your best ability); the point of practicing is to help you feel confident about how you are telling it.

Before our meeting, I would like for you to read the enclosed deposition guideline. While you read it, please make notes of any questions that you have for me. I’ll answer them at our meeting.

Your deposition is a very important part of this case and I appreciate you taking the time to do the best job that you can on it.

Best regards,

Awesomesauce Attorney

Part 2: Deposition Guidelines (sent with letter)

Please feel free to take these guidelines and make them yours. This is also free, but I’ll let your conscience be your guide about whether or not you should send the truffles I requested. If you have suggestions to make it better or you already use one of your own, please send it and I’ll publish them!

Deposition Guidelines

What is a deposition?

A deposition is a question and answer session, usually between the opposing party’s attorney and a witness, expert, or adverse party. The attorney asking the questions is called the “examining attorney.” The “deponent” is the person whose deposition is being taken. If you are reading this, that probably means you are the deponent!

Every word spoken at the deposition is typed up by a court reporter, who will give all of the parties a book of the questions and answers later. I will show you an example of this book when we meet together. Many times, depositions are also videotaped.

Before you begin answering questions, the court reporter will have you swear to be truthful, just like you would do in court. The testimony you give is “sworn testimony,” meaning that if you deliberately lie during your deposition, you could be in legal trouble later. It also means that your testimony is public record (unless I tell you it isn’t) and that it can be used in court, either for or against you.

Why is my deposition so important? 

Depositions are one of the main ways attorneys learn about the facts of the case.  No matter how much research we do, there are always going to be things we don’t know until we ask the people involved. For this reason, the goal of the examining attorney is to get the deponent to talk as much as possible. At our meeting, we are going to discuss preventing that.

Deposition testimony can be used against the deponent in court. Other things people say can be used against them too, but deposition testimony is more compelling than using words said in an email or conversation, because the deponent swore to tell the truth. If a judge or jury finds out that the deponent lied during a sworn statement, they have no reason to think that he will take his oath to tell the truth in court seriously.

Depositions are a way of telling whether or not the deponent will make a good witness in court. Whether, and how, a case settles often depends on whether a deponent would make a good witness at trial. Even if someone tells the truth, if they do not make a good impression, the opposing attorney will use that to his/her advantage to push for a bad settlement.

What should I wear? 

For the reasons I’ve already mentioned, it’s important that your appearance creates a good impression. For that reason, please be as personally clean and as respectably dressed as possible.

I have offered some very specific suggestions below. Please don’t be offended by this if you do not need my help; however, I have had many clients worry a lot about this issue or misunderstand me, so I have started offering detailed instructions to help those clients be more comfortable.


I understand that not everyone can afford to get an expensive suit or their nails professionally done. That is not required, even if you can afford it. All that I require is that you to make the best effort that you can. Incidentally, if your case goes to trial, these are the same guidelines.

Creating a good impression does not have to cost a lot of money. For instance: holes in clothing can, and should, be mended; shoes can be cleaned and polished at home; nails can be trimmed and cleaned at home; hair can be washed and neatly styled without paying anyone. These simple steps will go a long way.


  • Hair should be washed and trimmed, or pulled back neatly if long enough. This is not the time to try out a mohawk or shaving your head for the first time.
  • Hands and nails should be cleaned. Nails should be trimmed.
  • Facial hair should be appropriately groomed.
  • Clothing should be clean, smell fresh, be pressed, and comfortable. If you have never worn a three-piece suit in your life, this is probably not the time to try it out. The best description of what to wear is “business casual.”
  • Shoes should be cleaned & polished (if applicable) and comfortable. Your deposition could take a long time and wearing tight shoes would make it a very painful experience.
  • Piercings & tattoos: if you have a large number of piercings and some of them can be removed without causing harm or leaving a gaping hole, please do the best you can. Tattoos should be covered by clothing, if possible.


  • Hair should be cleaned and neatly styled.
  • Hands and nails should be cleaned. If you wear nail polish, make sure it isn’t chipped. If you wear your nails short, make sure they are trimmed and clean. Longer nails should look nice.
  • If you wear make up, please be conservative.
  • Shoes should be cleaned & polished (if applicable) and comfortable. Your deposition could take a long time and wearing tight shoes would make it a very painful experience.
  • Clothing should be clean, smell fresh, be pressed, and comfortable. If you have never worn Spanx in your life, this is probably not the time to try it out. The best description of what to wear is “business casual.”
  • Piercings & tattoos: if you have a large number of piercings and some of them can be removed without causing harm or leaving a gaping hole, please do the best you can. Tattoos should be covered by clothing, if possible.


You should bring a sweater or light jacket. We never know if the room will be freezing or really hot, so plan accordingly.

Please also be sure to eat something before your deposition. If you have low blood sugar issues, please bring a snack with you.

If you take medications, be sure to bring them with you if you need them.

Steps to answering a deposition question.

1. Tell the truth. 

Please do not lie, even if you think it will help your case or someone else’s. It never turns out well, so just don’t do it. But, that does not mean that you have to volunteer information if it was not asked. You have every right to make the attorney ask you the right questions. It is not your job to sort everything out for them.

2. Listen carefully to the question.

3. Pause. Why?

a. Makes sure the attorney is finished asking the question.

b. Gives me time to make an objection if one is needed. If I object to the form of the question, wait until I finish the objection, and then indicate you that you may answer. If I object based on a privilege, I will instruct you not to answer the question.

c. Allows you to think about the question that was actually asked.

d. Makes it easier for the court reporter to create a clean record.

4. Answer the question asked. See the next section for acceptable answers.

5. Stop Talking!!! Don’t offer explanations or volunteer information beyond the question actually asked. If the attorney wants an explanation, she will ask for it.

Acceptable answers to most questions:

1. Yes-if the answer is definitely yes.

2. No-if the answer is definitely no.

3. I don’t know (if you are not sure, can’t remember, never knew and/or don’t know now).  Never guess if you don’t know. You aren’t being deposed for information you can guess. You are being deposed for what you know.

5. I don’t understand. If you didn’t hear it, ask the attorney to repeat it. If you didn’t understand a word they used, or the way the question was phrased, ask them to rephrase the question or tell them which word you don’t know. Attorneys are people and sometimes we ask bad questions. Everyone will appreciate you pointing it out, because that will help create a cleaner record.

6. May I take a break? If you need one, ask for one. This isn’t an endurance test, if you need a break take one, but if a question is unanswered, you will need to answer it before the break begins.

7. Correct/Clarify earlier mistakes when you realize you made one. It’s ok if you messed up an earlier answer. As soon as you realize you misspoke, let the attorney know that you need to correct your answer.

Why I will be quiet for most of you deposition. 

A real deposition is not like the ones you see on TV. Many deponents are worried that their attorneys are so quiet during their deposition.

I am only allowed, by law, to make limited types of objections. Objecting when I am not supposed to can get us both into trouble. Additionally, it ends up taking much longer and does not help the case.

The examining attorney is allowed a lot of leeway about what they ask. You may not see the relevance of their question to the case–I may not see it either–but that does not mean that you don’t have to answer it.

Please rest assured that even if I am quiet, I am listening, and if I am allowed to make a necessary objection, I will.

Tricks I use on other people that I do not want you to fall for. 

1. I am really nice to deponents to get them to warm up to me and talk a lot.

It does not matter how nice the attorney is–they aren’t your friend and you aren’t having a nice chat over coffee. They are interrogating you in order to find out things that could rip apart your case or defense.

2. I get people to “guesstimate.

This is an easy way attack someone’s credibility later. If you guess something was 20 feet away because the attorney tells you it’s ok to just guess and the actual distance turns out to be 2 miles, you are not going to look like someone who knows what is going on. If you don’t know, say you don’t know.

3. I play dumb to make deponents think I don’t know the truth.

I often act like I don’t know something, just to see if someone will lie. For instance, I often ask someone if they have ever been sued, or gotten in criminal trouble, and assure them that I don’t mean any offense, but I have to ask everyone. Often, I have that person’s entire rap sheet sitting right in front of me. People will often lie, thinking that I do not know the truth and that I will believe their answers.

4. I will bait an argumentative person.

If you start arguing with the attorney, they can get testimony out of you that reads terribly on a transcript. Don’t argue with the examining attorney: that’s my job!

Additionally, argumentative witnesses are very off-putting to jurors and judges. The same is true of sarcasm. It just does not read well on a transcript, so don’t use it.

5. I ask people if I can see something they have with them. Don’t agree to give up something if you are asked for it, like a license, or wallet, etc., unless I tell you to go ahead. Tell the examining attorney to ask me for it later. Exception: You can refer to notes if you need to during your deposition, but please know that they will be shown to everyone present and will be made an exhibit to your deposition. Please do not bring anything to your deposition that we have not explicitly talked about beforehand.

Stay Tuned for Part 3: The Meeting Agenda and Video Examples