What is a pre-deposition?
Why is it so important to prepare for a court deposition?
What should be done to prepare for a deposition?
In this article, we break down the pre-deposition concept so you know all there is to know about it.
Let’s do this!
A deposition is generally an activity performed during the discovery phase of a lawsuit where a witness is called to offer an out-of-court testimony on the facts he or she may have personal knowledge of or produce documents or exhibits in his or her possession.
Now, a pre-deposition represents the activities or work required to be performed before the deposition takes place.
Such work consists of the lawyers preparing for the deposition along with witness preparation.
Importance of pre-deposition preparation
The preparation that goes into getting ready for deposing a witness or preparing a witness for deposition is crucial to the overall success of a lawsuit.
Very often, following the out-of-court depositions, litigation lawyers will assess the nature of factual statements offered by the witness and assess the impact on their litigation strategy.
Quite often, the litigation strategy may need to be tweaked and in some cases revised in a significant way.
Let’s look at some of the most important pre-deposition activities.
Preparation of a party to the lawsuit
The preparation of a party to the lawsuit for his or her deposition is absolutely critical.
The deposition can have a significant impact on the overall success of the case.
A party to the lawsuit being deposed is as significant as the party testifying before a judge at the final hearing.
Seeing the importance of a party’s deposition, a litigation lawyer will generally want to adequately prepare his or her client in advance.
This is how a litigation lawyer can prepare a client for a deposition:
- Do a mock deposition
- Ask open-ended questions for client to practice answering
- Have the client tell his or her story
- Review the important facts of the case
- Review the important legal aspects of the case
- Discuss deposition traps
- Go over the exhibits of the case
- Provide pre-trial instructions (we cover this topic below)
- Provide feedback on the client’s demeanour
- Provide feedback on how the client answers the questions
- Assess what may be the other party’s objective and define a plan
- Go over the legal proceedings and allegations formally on record
The deposition of the party to the case is a glimpse of what is in store for the final hearing.
A litigation lawyer will often prepare his or her client as if they were going to the final hearing where the testimony is given before a judge.
In high profile cases, clients will be professionally prepared before offering their deposition.
In smaller cases, a client’s preparation will not be as formalistic and extensive but must be enough to help the witness understand what they may go through during a deposition.
Preparing for a third-party factual witness
During the discovery phase of a case, third-party witnesses may be called to testify as to what they know about the case.
Testimonies offered by witnesses can have a dramatic impact on the case.
Without an adequate preparation, a witness may potentially testify in a detrimental way.
To avoid the adverse consequences of a deposition, it’s a good practice to prepare in advance.
Who is the witness being called?
What does the witness know relevant to the case?
Is the witness hostile?
What’s the witness’ background?
Are there previous under oath testimonies available?
What’s the relationship of the witness to the parties to the case?
Understanding who is being deposed, why and what’s the objective pursued can help prepare for the deposition of the witness.
Preparation of the deposing lawyer
Another crucial aspect of the pre-deposition phase is the deposing lawyer’s preparation.
A lawyer must have a very good grasp of the facts underpinning his or her case.
Knowing where he stands in the case, what is missing and what is needed from the witness is essential to adequately prepare for a deposition.
The lawyer must have a clear objective for the deposition.
What is the litigation strategy?
What are the legal theories pursued?
What are the gaps in the evidence or facts?
On what facts will the witness tesify?
In what way can a witness hurt the case?
The litigation lawyer must be ready to depose a witness based on a defined plan.
The worst is when a lawyer goes into a deposition winging the questions.
That will generally not give a favourable outcome.
Preparation of the lawyer to the deposed witness
The lawyer representing the witness will also need good pre-deposition preparation.
In some cases, the witness is a third party to a case.
If a witness receives a deposition subpoena, he or she must show up and testify to avoid being in contempt to court.
What’s tricky is that even though a witness may be a third party to the case, the testimony offered by the witness may implicate him.
It may be possible that based on the testimony offered, a party to the lawsuit may file suit against the witness in question.
Often, that’s not the case but it can happen.
Take for example a criminal case where a third-party witness is deposed and he offers an incriminating testimony.
The lawyer preparing the third party witness must look to understand what is the nature of the litigation, who is calling the witness, what are the potential objectives pursued, what are the risks and pitfalls, what does the witness know related to the case and so on.
The more the lawyer is prepared, the more he or she can help his client as the third party witness in the case.
Some law firms have a boilerplate pre-deposition instruction guide to offer their clients or witnesses allowing them to prepare in light of the deposition.
It’s a good idea to provide context as to what is a deposition and how it may be handled.
Purpose of the deposition
The witness should be made aware of what are the possible strategies that may be pursued by the deposing lawyer.
Typically, these are objectives pursued when deposing a witness:
- To document what the witness knows under oath and test if the story holds during the final hearing
- To get documents, exhibits, material or other evidence relevant to the case and in possession of the witness
- To lock a witness in a specific narrative
- To attack the credibility of the witness by uncovering lies or untruthful statements made
Instructions to the witness
The witness should also be notified as to how the deposition will be conducted, what to do and to avoid doing.
Here is a list of topics to discuss as pre-deposition instructions to the witness:
- Testify as to what you personally know
- Don’t speculate
- Don’t give your personal opinion
- Don’t infer or guess
- Don’t answer something just because you want to answer
- Don’t promise to give more information later
- Don’t answer beyond what you can know
- Don’t turn to your counsel for help on how to answer
- Don’t justify your answer
- Answer the question only
- Don’t go on a rant
- Don’t get angry
- Don’t argue with the lawyer
- Don’t refuse to answer a question unless there is an objection
- If there is an objection, stop answering immediately
- Following an objection, don’t answer until your lawyer gives you clearance
- Tell the truth
- Remain composed at all times
- If a question is not clear, have the lawyer clarify the question
- Don’t answer a question you could not understand
- Don’t chit chat with anyone
- Don’t speak in the presence of the other party or counsel during breaks
These are some important pre-deposition instructions all witnesses should be given.
In many things in life, preparation is key to success.
The same goes with depositions in the context of a lawsuit.
If the parties are prepared, the lawyers are prepared, the witnesses are prepared, things can go much better than without any preparation.
Witnesses should be given pre-deposition instructions so they understand why they are being deposed, how they should prepare, what they should do and what they should avoid doing.
The lawyers must also have a good preparation so they know where they are in the case, what are their strengths, their weaknesses and what objectives they should pursue by deposing a witness.