Trial Magazine

Your clients can make plenty of mistakes in a deposition. Follow these tips to help them avoid the most common ones.

Be truthful. If your clients are caught in a lie, or even an exaggeration, their credibility may be irreparably damaged. Make sure they know how their deposition testimony can be used against them.

Avoid absolutes. Tell your clients not to use words such as “never” and “always” when describing something. Many deponents have had these words backfire on them.

Correct mistakes immediately. For example, your ­client testifies that she has never been arrested. During a break, she remembers an arrest from college but decides not to correct the mistake on her own. When the deposition resumes, opposing counsel presents her with an arrest record he found. Although explainable, your client may face credibility issues that could have been avoided.

Remain serious. Trying to be funny—or worse, being arrogant—is rarely received well by a jury. Remind clients that sarcasm and nervous joking are not amusing when they appear in print and are read to jurors. Work with your clients to prevent these behaviors.

Less is more. Advise your clients to stop talking once they have answered the question. Verbose answers are likely to help the defendant, and some excellent testimony comes from deponents who dislike awkward silences.

Don’t go low. Your clients should not speak negatively about anyone, including the defendants. Witnesses are more credible when testimony about the defendants is objective and neutral.

Be patient. Your clients must be calm and polite. They will be asked questions that are repetitive, irrelevant, and invasive—or about evidence that hurts their case. Prepare them to answer without being rude or dismissive.

Take frequent breaks. Remind your clients that they need to ask for a break if they feel nervous, angry, or uncomfortable. Help them by recognizing when this is ­happening and asking for the break yourself.

Chad Ihrig is an associate at Nix, Patterson & Roach in Austin, Texas. He can be reached at cihrig@nixlaw.com.