Every case has a client and cases roll into litigation. This means there’s going to be a client deposition. This is a resource we have in every case. In this episode, we dive deeper into preparing your client for deposition, why this is important, and some of the things you can do to help your clients prepare better.
Specifically, we’re breaking down deposition preparation into three large groups. We want to do the heavy lifting outside the conference room where the deposition will happen by spending enough time with our clients and having tough conversations about the case.
Now, there’s a lot of different truth out there and people can paint their own truth (even if it’s not factually backed up). That’s why clients have to feel comfortable and understand what we mean when we say we want the truth and the truth will set you free. We want to focus on helping our clients tell the truth.
That’s what deposition prep is all about. We want to make sure our clients are walking in with the right mindset and that they understand the right set of rules, what’s going to happen and why, and what everybody’s role is. We want to use the right tools and techniques to help them gain clarity of thought, thereby improving the trajectory of the case.
In this episode, you will hear:
- How I got into helping people with their deposition
- The benefits of spending time with your client in preparation for deposition
- What happens when we prepare clients for deposition
- The mindset we want for our clients in regards to understanding the rules
- Tools and techniques you can use to refresh your client’s memory
- The power of roleplaying
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Episode Transcript
Hello, Elizabeth Larrick here, and welcome everyone to this episode of Trial Lawyer Prep. This is a podcast for [00:01:00] trial lawyers with a focus on difficult cases, problematic clients, and taking those difficult and problematic cases to trial.
This episode, we’re going to drive a little deeper into preparing your client for deposition and how important that is and some of the things that we can do to prepare better in order to help our clients. This is an area that I absolutely have a true passion for and it really developed early on in my career, probably a little bit out of necessity.
Starting out as a puppy lawyer, pretty much that was the area that I was allowed to start off with, helping clients prepare for deposition but actually sitting with them as they go in to be deposed. I didn’t have a ton of guidance other than spend 30 minutes with them, go over documents in the case, and that’s pretty much what we do.
So I go in and I sit down with a client and we go through the experience and they come out mad and frustrated and I’m a little bit [00:02:00] bewildered because I’m thinking there’s got to be a better way to do this. I mean, think about it. Every case. So if there is a drain that is pooling and there are a few cases where their own unit has a client and cases are rolling into litigation and so that means there’s going to be a client deposition.
This is a resource we have in every case. So I’m bumming along. I feel like I’m striking out, not really helping these folks get ready for deposition, but these are not my issues. Total bombs. These are just inconveniences and things that aren’t really helping the case. So I find myself in a seminar and I’m there for depositions to polish up, learn the ways of how to take a deposition.
And during that time, I got pulled up on stage doing a role play. And this is when I met Mr. Don Keenan. He told me about this preparation template. And there were these DVDs you could buy and you could watch them. And I thought, great. So I immersed myself in these DVDs. There were nine hours of deposition prep.
Sometimes we have those DVDs [00:03:00] out there that give to a client, Hey, take this home, watch this. And it’s, this is a depo. And sometimes they show a few things, a lot of do’s and don’ts. This was actually nine hours of real preparation of different cases, different clients, super helpful. It’s more like. Watch this and gather what you can.
I did. And I really gathered up as much as I possibly could. And Mr. Keenan was super helpful in teaching me and continue to teach me in that. And that’s actually one of the things that I do with Keenan Trial Institute is teach witness preparation to other lawyers. But getting back to my story is that I take this back and I start using it with clients and I love it because they came out so much more confident, so much better.
They felt better about what happened. And I couldn’t quite see it at the time, but The things they were doing were helping the case. They really were. And so it was really helpful. And that’s just one of the things that I have [00:04:00] done is just keep doing this hours and hours and hours of sitting with people, learning new ways to talk to people.
And the skills that I learned from preparing people, the listening skills that I gathered, the ways to communicate with people, really went so far to help me with the rest of the areas of my practice as I got along in years and. saw things and again, I’ve always done plaintiff’s personal injury work. And so my eyes always are kind of fixed on what that model looks like.
Case comes in, sometimes it’s just happened, sometimes it hasn’t, but litigation and going through that process. But you know, most cases actually settle, they don’t make it into the courtroom. So a lot of the judgment of the case comes from deposition testimony. That’s why we as lawyers work really hard to take good depos, but we don’t always focus on preparing clients better for depos.
One of the things that opened my eyes was clients are really the [00:05:00] number one target. And a deposition is that place where it’s open season. They’re getting to talk directly to your client. There’s really not much you can do as far as helping guide the conversation. It sometimes can be difficult to sit through and there are a few things that So basically, there’s a bunch of different, you know, types of rules that are available as far as the rules, but what we really want to do is do that prevention work, do that preparation work.
And that’s what we do. And a lot of what we’ll talk about in this podcast is kind of take things apart as far as the differences and how we prepare them. What are the different facets of it? How does that translate into the case? How does that translate into the relationship that you have with your client?
But really what I want to look at today in this episode is breaking down a little bit of the preparation into three large groups. Also tag lining a few things along the way on our roadmap so that when we come back later on to really dive into client [00:06:00] testimony for deposition, we really can jump into those smaller areas of the roadmap.
Let’s talk a little bit about mindset for the client. They come in, they’re really not understanding 100 percent what happens. We live it, we breathe it every day. We know what’s going to happen next, what the questions are going to be like. And it’s really important for us as lawyers to understand What they think but how they think as well because that is really where there’s a big exploitation when it comes from defense council Asking questions and really being able to exploit false Assumptions that some clients have I would say probably one of the biggest false assumptions that I’ve heard clients can have is that we, as the lawyer representing them, can stop what’s going on, stop questions, or deflect questions away from them so they don’t have to answer things.
Because well, of [00:07:00] course, why not? That’s what they hired us for. That’s what they want is someone to be their advocate, to speak for them. This is the system that I work in as a lawyer every day, and not necessarily you, client. It’s sometimes really, really small things like that That can significantly help a client’s performance because once they grasp that, that’s not how it works.
It’s a question and answer. And my lawyer is just going to sit on the sidelines. And there are lots of different trains of thoughts about how some people prefer to be more aggressive, and some people prefer to talk along with the client. But my train of thought has always been Let’s do the heavy lifting outside the conference room where the deposition happens.
Let’s spend the time, spend the hours really diving into and making sure we’re having these tough conversations about the case, but also just these false assumption conversations to make sure we’re really walking in with the right set of rules [00:08:00] and the right set of expectations about what’s going to happen and what’s the purpose and what everybody’s role is.
Thanks. So we spend a lot of time talking to the client. I spend a lot of time talking to them about what they think and what they expect. And a lot of times what I hear is, well, I don’t know what to expect because I don’t know what I don’t know. But they do gather so much of our experience. If you think, Oh, well, my life experience is really limited only to what I have physically experienced.
That’s so not true. We gather experience from watching movies and reading magazines and the things that we’re exposed to that goes into our experience bank. So when clients tell me, well, I don’t know what I don’t know, but you do because you’ve been exposed to TV or movies or somewhere in there, some kind of impression, even just about lawyers that I want to know about.
Cause what if it’s negative or what if it’s totally a myth? Let’s get everybody on the right foot before we move forward, because that will [00:09:00] really get us in a good place to jump off from, because you don’t want to be coming in from behind trying to correct things along the way, because that causes more confusion.
So it’s kind of like playing a game. You know, if you’re going to play a game, you want to know what all the rules are and where everybody goes and what the whole target is. So setting the rules of the game correctly and making sure they understand just the roles people play, the rules. But sometimes also, what is it we’re really doing here?
What is the purpose? And what happens with this depo itself? Those are really helpful things to also help the client understand. One of the things that always comes up as well when we sit down for deposition is I always get so many more questions about the case itself. It’s almost like sometimes they kind of store it all up.
We may call and check in and how’s everything going and you know, we’re gathering things up for the case and they don’t always express those questions in those moments and I think it’s a lot [00:10:00] to do with focus. The deposition now brings the case, the lawsuit, very into focus for them. It is in the forefront.
It is now something that they must look at and deal with. And so all these questions pop up and I prefer to get all those out of the way again, before we kind of get down to the nitty gritty about the deposition, I just don’t want anyone to have any loose thoughts out there about what’s going to happen.
If they are having doubts about their case or worries about different things inside the case. Let’s handle those two before we jump into the nitty gritty. You don’t want to have any worry or naggy things out there. So that’s another thing that I always end up taking care of loosens if you will. One of the things that I like to do as well with prep is once we get things rolling, we’ve answered a lot of questions.
We’ve got our good mindset. We know what our rules are. We talk about lots of different tools and tricks to use to refresh their memory. I practice here in Texas a lot, but I do help folks across the U. S. in different places. And what I have found is there’s [00:11:00] one really pretty universal thing, which is time.
It takes a long time that the date of their injury until they have a deposition, I mean, two years, three years, sometimes people even are waiting four years and that’s not necessarily because of the faults of the lawyer. Sometimes that’s just the court system that we work in. It just takes a little bit more time.
In that time, memory fades. It’s totally natural for that to happen. So I try to use some different tools, visualization techniques where we’re writing on these giant notepads or if we’re on zoom or use share screen to write down what they’ve got and visualize it. Sometimes people, they don’t do that.
This is not something that they sit down and think a lot about. It’s a massive event that happened to them. And even if we’re not talking about personal injury, let’s just talk about business or even family law. These are huge life events that have brought them here and they don’t really spend a ton of time organizing their thoughts or organizing their [00:12:00] memory when it comes to that.
So this again is a great place for us to do that. It’s a Perfect opportunity. This deposition is bringing everything into focus. So let’s do this work with them because refreshing that memory, going over these things, organizing them in a fashion that meets with what the questions will be will make it significantly easier inside the deposition, but clarity.
One of the biggest stumbling blocks sometimes for clients is clarity of thought. They get in the deposition and they’re trying to remember things. They really want to answer these questions correctly. They really want to try, but they haven’t thought about it. So they’re just scraping through to try and figure it out.
And then there’s a lot of energy that comes into that memory recall and. Maybe it’s there, maybe it’s not. Let’s do all that before we get into the deposition. Part of that comes with reviewing documents, but a large part of depositions don’t have anything to do with documents. And even if I were taking a deposition as a lawyer, I would want to know what’s in their memory versus them [00:13:00] looking at documents to try and refresh your memory.
So lots of different ways we can help them organize their files. facts, right, by using some tools. And the third big part of helping a client prepare for deposition testimony would be role play. This is a great tool that tons of people are using. Totally encourage you to keep using it. There’s so many fantastic ways to use it.
One of the ways that I love to do it, and now that we have Zoom and so many people are like, Oh yeah, Zoom’s so easy. It’s super easy for me to jump in and help somebody do a role play. We do a short and sweet and 30 minutes and we just hit the hard stuff. And then I hand the client back over or hand the person back over to their lawyer.
But having that experience. Uh, and um, uh, indirect, indirect indirect, uh, direct largest, uh, um, uh, uh, small, Um, and uh, uh, it’s, it’s, uh, it’s, it’s easy. It’s very easy [00:14:00] to go to a legal aid company and say, here’s how I’m going to treat, here’s Testimony Then I’m going to go after that because role play really is to put the pressure on, give them a true look at what that deposition is going to be.
And if you do role play, that’s just the simple stuff that really creates false confidence because if things don’t match up, they get in a deposition and things are just not matching up. It’s so much harder. And all of a sudden it’s a surprise. We really, really don’t want surprises because then that’s when you start to really try to find answers.
And sometimes you may create answers and we never want anyone to create an answer anywhere. So role play can be super helpful in creating that. Very short, like I said, 30 minutes snapshot of really, really difficult questions about the case. And role play also [00:15:00] really gives you a good idea as the lawyer about how clients react under pressure.
How are they going to deal with this person who is asking a really hard personal question, But maybe their tone is just really flat. They just really don’t care. They’re just reading a question off a piece of paper. That’s hard. Emotionally, we want to have an exchange. It’s a conversation. And when there’s not emotional feedback, you have to really rely on yourself and feel really confident in yourself to keep going, keep answering that question.
That’s a good look when we’re doing role plays to practice that look of a lawyer asking questions, being very flat, very blank or questions where maybe there is a little bit of tone in there. That’s great. We want to practice all those different things. If we really want to gear up how we’re using role play, we’ll do research and we’ll go find depositions and actually pull questions and put it in front of the client so that we’re making sure that [00:16:00] they feel comfortable with those questions.
We always want the truth. That’s one thing I don’t ever want anyone to feel like we’re trying to pull you away from the truth or from the wonderful thing that the truth is. However, just arming your client with advice. Just tell the truth. In these days, Truth is kind of a little bit unethical because the way that we work now, there’s a lot of different truth out there and people can paint their own truth, even if it’s not perfect.
Factually backed up . That’s not how the legal system works. And we really wanna make sure that our clients are comfortable and they understand what we mean when we say we want the truth and what it means when the truth will set you free. And that’s great. We, that’s what we really wanna focus on, is helping them tell the truth, and that’s what deposition Prep is about, helping.
A lot. Like we talked about first, let’s get the rules out there. Let’s talk about the mindset. What do they understand and how do they understand it? Let’s [00:17:00] use some tools to refresh their memory and go through different pieces of stuff that it’s been a couple of years. Let’s refresh that stuff, get it back out there.
And then also let’s use role play as a fantastic tool to give them an idea about what it’s going to be like when it is game time. These are really broad overviews of a way to prepare somebody, but what do we gain if we spend this time, right? One of the things I always like to do is have my preparation time with my clients over at least two different days because what I have found Um, and so what we’ve found is once we start to rummage back through that memory and pull things back out, so much more starts to unpack and so much more starts to unfold.
And it’s such a great process. And you lose that if you just do everything in one day, because having that reflection time really helps the client be able to pull things out, analyze it. Like we talked about, visualize it with some lists or even just putting it up so they can see, you [00:18:00] know, really what it is.
That happened during that time frame and how it really impacted them. So we take this time, we spend the hours, maybe it’s two separate days, maybe ends up having to be three days, just depending on scheduling. And what is the benefit? Clients are in every case, deposition of our client happens in pretty much every case.
What do we get when we spend this amount of time with our clients? Well, one is they’re going to have clarity of purpose, clarity of thought. They’re going to have testimony that’s not confusing, that’s clear. And they’re not going to remember everything, but they’re going to have so much more at their front of their minds to be able to access to answer questions.
You’re going to find that another benefit is they really step into the shoes of telling what’s happened and feeling empowered to speak up for themselves. That is such a valuable benefit because [00:19:00] most lawyers are not expecting clients to come in there and knock it out of the park. They’re expecting people to do the usual, I don’t know, I don’t remember, this is what I know.
Your person’s at fault, or I didn’t do this, or whatever the question may be. They’re not expecting people to come in and explain and have stories and examples of what happened or have details about different things because they refresh, they sat back down and they went back through that step by step.
What happened? That means when it’s in black and white, it goes into that memo, into that report and over to that decision maker, whoever that may be in the case. Maybe it’s insurance carrier. Maybe it’s somebody else in the firm, but it’s there and it can’t be ignored. And that’s a huge benefit to the case because you always want to have a client who is a strong advocate for themselves.
I hear some cautioning voices out there like not too strong. You know, we want people to be steady as she goes. And of course, that’s one of the things, too, we really talk about is how to [00:20:00] manage our emotions when we’re in a deposition because a lot of people really worry about their emotions getting the best of them, whether it be anger or whether it be sadness and tears.
That’s another one of those things that could be a surprise if people don’t talk about it and get it out. Have it in the prep room, you know, have that safe space there versus in that deposition and somebody’s caught off guard. So these benefits of talking with your client, spending this amount of time, one of the things that I have seen is the relationship you have with your client has just gone to a whole new level.
And the amount of trust and bonding that happens is so significant that months may go by and you guys have to make a difficult decision in the case. Maybe it’s settlement. Maybe it’s trial. Maybe it’s making decisions about who will testify and who won’t and that trust. That bond comes back and they get it.
They understand and they trust you as a lawyer to make that decision because they know that you have their best interest at [00:21:00] heart. You spent so much time to know their heart that they totally trust you to make the decision that’s best for the case and for them and most of the time their family. We have this amazing opportunity in every case to spend time on a deeper level, getting ready for deposition.
I really encourage everybody to take a deeper stab at it. Some of the things that, some of the skills that have really come from my preparation work is listening. I’m a way better listener. Taking a pause before I interject my thought. Digging deeper on a thought. Asking someone to tell me a little more, how do you re say that, has really, leaps and bounds, helped me in every other facet of what I do, especially.
And trial work, talking to a jury, or even talking to somebody on the stand, talking to defendants, taking other depositions, has significantly helped me, and at the same time, I get the experience of all those wonderful people that I’ve helped and [00:22:00] prepared, and their lives, and the things that they’ve gone through have definitely become a repertoire of experience that I have as well, so that’s definitely helped me as far as, talking to other people, talking to strangers, talking in focus groups to people I have no idea who they are, what their background is.
It makes you so much more curious and that’s one of the things you’ll probably hear me talk a lot about is let’s be curious first. Let’s not jump to a conclusion. Let’s not jump to assumptions about people. Let’s just be curious and let’s ask questions and try to understand a little bit better before we maybe jump to an assumption about, Oh, they have this belief or, Oh, they’re not telling the truth about this particular thing.
Let’s just get to the bottom of it and understand a little bit more before we come to a conclusion or, or make a judgment about something. So we’ve talked a lot about deposition preparation. We talked about mindset, but And talked about having some tools to help organize and to refresh memory plus role play.
And we’ll take each of those topics separately in [00:23:00] different episodes, but I just want to give a larger overview about client deposition. Now, if there’s something that you have a particular question about, or maybe you’re struggling with a particular client, like please, uh, shoot us a note, shoot me an email and we’ll make sure that we cover it in episode.
But for now, thank you so much for tuning in. I will catch you on the flip side, as you know, this is a brand new podcast and I would love if you could follow me on your favorite app, whether it be Apple or Google or wherever you listen to podcasts, write a review or leave a five star rating. Also, if you could share this with your lawyer friends, that would be great.
Awesome. Thank you.
