Deposition Basics: The Gimmick Grab-bag

A few years ago, Southwest Airlines decided to let its flight attendants liven up the pre-flight safety lecture by injecting it with sassy comedy. Suddenly, camera-phone videos of these wacky performances were popping up all over the internet (like here, here, and here), and a few Southwest flight attendants enjoyed their 15 minutes. It was a clever innovation, allowing the professionals delivering important information to jazz it up with some creativity, which undoubtedly led to more people paying attention to an otherwise dull message.

Litigators get to exercise their creativity in delivering messages to juries, courts, and opposing counsel fairly frequently, but communications with the client are another story. The delivery of advice to clients tends to be businesslike, staid, to-the-point, and dry. And most of the time that approach makes perfect sense. We are providing the client with important information that they are interested in receiving (presumably), accustomed to processing (usually), and which they will immediately take to heart as they contemplate what to do next (hopefully).

Unlike the flight attendants giving a pre-flight safety lecture, we are not trying to impose upon the clients instructions about how they should behave in the event of an intense and potentially catastrophic situation, whose specific perils they cannot possibly imagine even though they think they have a sense of what it must be like from movies and such, all of which they believe is a waste of time because those terrifying things are very unlikely to happen to them.

Well, usually we’re not.

Preparing a Client for a Deposition

Preparing clients for depositions is one of the most important—and challenging—tasks in discovery. And it is one instance in which litigators get to have a bit of creative fun in how they deliver the message to a client, because the message is very much like the pre-flight safety speech. Nobody wants to hear it, it feels like a waste of time, and its goal is to affect the behavior of the clients in a situation that they think they understand, but they almost certainly have wrong. If the method of delivering the lesson isn’t jazzed up a bit, there is a risk that the advice won’t be heeded. When the metaphoric cabin pressure drops, the client had better know what to do with the strategic mask that just dropped from the ceiling of legal advice, and not panic that the gas-bag isn’t fully inflated.

(Okay, we’ll bail out of the plane metaphor at this point. I’d hate for it to become strained.)

Litigators know that this is an important conversation, and they are taught that efficacy lies in gimmicks. Most litigators have a collection of analogies and tricks that are designed to make the client aware of the “Dos and Do Not Dos” of deposition testimony. Some miss the mark, others are sadly dated, but some can be quite effective. A few of my favorites, covering all three categories:

Half-Past Clever

[The Lawyer is in the middle of an explanation of how you don’t want to answer more than the question being asked.]

Lawyer:  … so make them ask you for that, rather than volunteering it. Do you know what time it is, by the way?

Client [looking at his watch]:  It’s about 10:30.

Lawyer:  See what I’m talking about? You did it right there. The correct answer to that question is “yes.” I never asked you what time it was, just if you knew.

Client:  [Hangs his head and adopts an expression of simultaneous embarrassment and quiet awe at the lawyer’s amazing appreciation for linguistic subtleties.]

At least, that’s how it’s supposed to go. In reality, that last bit is usually replaced by a forced smile and a secret wish that the lawyer would spill hot coffee all over his over-large sense of smug satisfaction, along with the client vowing to try to make the attorney taking the deposition appear every bit as stupid as the lawyer just made the client feel.

And that’s the problem with this one. It’s a classic, and I’ve seen it used for many years by litigators of all stripes. Heck, I even used it myself for a while, until one prep session in which the witness responded with a big grin and said, “Oh, I get what you want me to do. Sure. This will be fun.” And he winked at me.

I realized that I was teaching the wrong lesson, however effectively.

In other words, the fun twist of this gimmick comes at the expense of missing the point. The goal is not to have the client attempt to out-clever the attorney taking the deposition, to shoot for the highlight reel, or even to answer the questions in any way that could be described as crafty. The lesson that this trick tries to impart is a good one—you don’t want to volunteer more details than a question calls for. But it is important to divorce that lesson from any suggestion that the clients’ answers should be artificially clever.

My approach involves a discussion of what the client had for breakfast. (And no, I won’t disclose it here—gotta save some material for the billable hours!)

Advice from another era

This picture is dated, as is any analogy that is based on what it shows.

One of my favorite bits of deposition advice is one I picked up from my dad (who spent many years as a commercial litigator). It attempts to put the client in the right frame of mind for giving thoughtful, carefully-worded answers, and giving them only once.

Imagine, when giving answers at a deposition, that you are dictating the first and only draft of an important business letter.

If anyone still dictated letters, I imagine this would be a great bit of advice. I say “imagine” because of course I’ve never dictated a letter. But my guess is that when you do so, you slow yourself down a bit, pick your words carefully, but still speak at a relatively normal cadence so that you can get the thing completed and not paralyze yourself by agonizing over every syllable. And really, that’s exactly what we’re hoping the client will do. In fact, this gimmick hits the nail on the head so squarely that I continue to use it even though it’s hopelessly out of date. I figure that the client might be able to imagine what it’s like to dictate a letter, even if the client has never done so either.

And who knows? Some day soon, what’s old may be new again.

Sauce for the Goose

The final gimmick in this grab-bag is one that I first heard being used to train lawyers who were learning to take depositions, but it so fully captures the feel of the event that I think it is worth sharing with clients as well. Attorneys come to deposition training with some of the same misconceptions as deponents do, including the notion that the process will be exciting. Some portions of it may be (especially if the client isn’t following my Most Important Piece of Advice), but a majority of the time spent in a deposition is mechanical, methodical, and dull.

That aspect of the process was best captured by a litigator who I heard telling a room full of eager associates:

Imagine that you are standing on a rocky beach. Your job is to turn over each of those rocks, look underneath it, and then put it back. You have to do that for Every. Single. Rock.

If the attorney taking the deposition has been prepared to take the time necessary to do the job completely, however dull it may be, then the client certainly should go into the process prepared to endure the same level of thoroughness. This insight also dovetails with the advice about not volunteering more than a question calls for. Every time the deponent mentions a new subject—even if it was just in passing, or on a whim, or as part of a failed attempt to lighten the mood—he has just placed more rocks on the beach. The attorney taking the deposition will treat them like all the other rocks, and the deposition just got longer.

The Art of Sanity Maintenance

The image of turning over rocks on a beach has a certain zen quality to it, which is important to get the clients in the right frame of mind. When clients sit down for a deposition, they need to have a zen-like indifference to the amount of time the process will take, the apparent superfluousness (even foolishness) of many of the questions, and the painfully slow pace of the event.

One last gimmick (also courtesy of my dad), and a simple image to fall back on if you ever find yourself preparing to sit for a deposition:

Think of the longest, most boring, and most pointless business meeting you have ever attended. It will feel action-packed and efficient compared to your deposition.

Breathe in, breathe out.