You have prepared well for a meeting with your client. It’s the first of three meetings to get her ready for what will likely be a long and difficult deposition. She’s never testified before. You have pages of notes and a long list of points about testifying in a deposition. You are the teacher and she is the student. You’ve done this many times before. You really don’t need the notes. Your general orientation usually takes about forty-five minutes to an hour and you’re good at it. You’re confident and reassuring. Clients seem to love it. You’re about to start the lesson…
STOP! Or at least postpone the orientation. Just for a moment, stop being lawyer and instructor. Put on your friend and counselor hat. Focus on her needs and fears first and just LISTEN.
What’s the first question you should ask your client when preparing her for a deposition?
Answer: “Before we get into the details what concerns you most about the deposition?”
Why ask this question at the beginning? First, it builds rapport and trust. You are telling her you care as much about her state of mind as the information you want to convey. You are also quietly signaling that she has some responsibility for how well prepared she is.
The second reason is the question will uncover client misconceptions about the deposition process and personal fears about testifying. This will help you focus your preparation and save you time.
There are different timing strategies for addressing misconceptions and fears. If your client thinks that she’s supposed to be able to remember what she was doing precisely four years earlier, you can correct that idea then and there. There are practitioners who believe you should hold off on the correction but my experience is that most attorneys will have a hard time not correcting the misconception immediately. I certainly would.
But if your client reveals a deep anxiety or fear (“the cross examiner will ask me questions that will get me fired”), you should think like a good friend or counselor and probe the source of the fear. Don’t say, “Don’t worry, he can’t do that!” You won’t learn anything and it won’t get rid of her fear. Instead, ask her more probing questions such as, “What type of questions do you think he’ll ask” and “What could you say that would get you fired?”
Practice Tip: You’re not a therapist but you can act like a good friend or parent and try to get to the bottom of your client’s concerns or fears.