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Preparing Your Client For Deposition

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Preparing Your Client For Deposition

The most important deposition in any case is your client’s deposition – the deposition you will never take. If we start with the premise that our client’s deposition is crucial, how do we ensure it goes smoothly? What steps do we take to prepare our client to give the best deposition testimony they can possibly give? This program will provide attorneys with a pathway to success when preparing there client for deposition. We will take a deep dive into the essential conversations you must have with your client when preparing them for deposition and best practices for excelling at deposition.

Transcript

Hi, my name is Frank Ramos or Francisco Ramos and today we're gonna be talking about preparing your client for a deposition. I often say and believe that the most important deposition in your case is not the opposing party. It's not an expert. It's not a third party witness. It is your client. Your client's deposition may not win the case for you, but it could detrimentally hurt your case and possibly even lose it for you. And so it is so important that you ensure that your client is completely and totally prepared for their deposition when they sit down and raise their hand and take the oath to tell the truth. And so as I say, this is the most important deposition that you will never take, because once you sit down and you defend your client's deposition, there's not a whole lot you can do. And just before we get into this in any greater detail, I want to provide you a little background about me and where I come from in terms of my practice. Frank Ramos, Miami, Florida. I work at a firm called Clarke Silverglate. I do exclusively litigation, all types, mostly on the defense side, civil work, and I've been talking and writing about litigation and pretrial skills for a number of years now. You're welcome to visit my website, miamimentor.com, M-I-A-M-I-M-E-N-T-O-R.com, where you can find my books, my articles, videos, and so forth. A lot of it is geared toward younger lawyers, but I think there's something there to be procured from any person who peruses the site. Or you can follow me on LinkedIn. I have almost 64,000 followers. My books are there as well as far as other resources. And there's a lawyer article I wrote from which this title comes, which talks about how to prepare your client for deposition. And again, it is the most important deposition in each case. And I always define or I compare your client or my client in a deposition as sort of the goalie of either soccer goal or perhaps hockey. They're not there to score the winning goal, but they are there to prevent the other side from scoring goals, preventing the other side from winning the game, as you say. And when you think about a goalie. Let's use soccer as an example. Here's somebody who is right outside the net. They have a bit of a space that they can work with, but they're not off trying to kick the ball into the other side's goal, cause otherwise, it would leave their own goal unattended and chances are that someone would score on them. They're there purely in a defensive mode. And so that is how I describe my client's role in a deposition. Can they score some points? I guess it's theoretical, but that's not what they're there for. They're really there for to make sure that they can tell their story in a way so that at the end of the day, the other side has not put chinks in their armor, has not secured valuable admissions, and certainly not laid the foundation for Summary Judgment. And also, whether it's Summary Judgment on their side or your side, if you feel you have a strong case and you feel that you may have a basis for Summary Judgment, you don't want your client to create a fact issue and cost you the Summary Judgment motion you planned on filing or that they make admissions that serve up a Summary Judgment to the other side. And also beyond that, the client's testimony can help settle up mediation on your terms or settle it on terms that are much more favorable. So are all depositions important? Yes. Certainly experts, witnesses, and so forth. But the most important one of them all is a deposition of your client. There's nothing more important than that. And so what I typically do early on in the case, I do two things: One, when I first get a case and typically I'm on the defense, usually my client hands me a complaint that they've been served with and it's up to me to file a response of pleading or a motion and then get the case moving along. And what I try to do is I try to gather all the relevant facts as much as I can, look at the relevant law, and look at the facts to the prism of the relevant law. And early on I start thinking through my trial themes and my trial theory. I try to figure out what the theory of the case is that I'm gonna argue based on the law and I think of what themes I'm going to use and develop to the various witnesses throughout the case. And even though the case likely will never be tried because vast majority of cases are never tried in this jurisdiction or in any other jurisdiction, I treat every case as if it is going to trial. And the reason I do that is I often feel that I can be much more efficient and effective and I typically put the case in a much better posture to settle it if that's the intent. And if we are gonna try the case, then I have all the information necessary and ready to go for a trial. And so I do that on one hand and on the other hand, I start educating my client. On one hand I'm trying to develop the trial theme and theories, and on the other hand, I'm explaining to the client no matter how sophisticated they may be, and no matter how many cases they've been involved in or how many depositions they may have given, I explain their role in the case. I explain that in all likelihood, unless there is an early dismissal or an early settlement, they're gonna be deposed in the case. Opposing counsel is going to have them sit for deposition. They're gonna have to raise their right hand and swear to tell the truth and nothing but the truth. And they may be sitting there for several hours and sometimes it may take more than one day depending on the type of case and circumstances and the parameters of what is going on. And once that deposition starts taking place, my role is very limited. And again, I'm explaining this in the context of Florida; Florida largely follows of federal rules. And I think most states have adopted in large part the Federal Rules of Discovery. And so I cannot give speaking objections. I cannot instruct the witness what to say. I can't interject my opinions. I can't constantly be trying to meddle in the conversation of the deposition or interrogation. My role is to object to the form of the question and that's basically it. And if a question is asked or some line of questioning tries to invade the attorney-client privilege or something is being particularly harassing, I can get involved then. But those are really the limits of my involvement. And so I explain to the client that at some point, we're taking his deposition and once he's sworn in or she's sworn in, I take pretty much a backseat role and they take control of the deposition. The person interrogating them may think they're in control, but I teach them and equip them and empower them to be in control of that deposition. And so if we start with the premise that our client's deposition is crucial, how do we ensure it goes smoothly? What steps do we take to prepare our client to give the best deposition testimony she can possibly give? Each experienced attorney has a mental checklist of how to prepare their clients for deposition. Some even have a detailed written checklist and they check off each box as they complete each task. And this article in this presentation that I'm writing is not about that per se, it is about The Speech. 'Cause each time, you're gonna be giving a speech to your client. You're going to be discussing with your client how to get ready for the deposition. And giving a deposition is very much a foreign experience for most people. It is not a friendly conversation. It is not an opportunity to tell your story per se. It is not the ability for you to try to share everything you know and then just call it quits. It is an opportunity for the other side to interrogate you, to put you in the box, to swear you in, and to pin you down and to ask you very specific questions where they want very specific answers to and seeking admissions. And it is very much a landmine. So let's talk about The Speech. And this Speech that I give has evolved over the years. I've been practicing about 25 years. I've taken easily over a thousand depositions and defended several hundred. And I've learned by watching other lawyers, I've learned by reading and going to various seminars and communicating with various clients and jury consultants how to prepare a client for deposition. And what I'm about to share with you is my approach. You may have your own approach and there's no right or wrong way to approach it other than to ensure that you've done everything you possibly can to prepare your client for deposition. And it's never too early to start preparing your client. Like I said from jump street, I am looking at the theme and theories of my case and I am also trying to, in effect, indoctrinate my client so that he or she understands their role in the deposition. And so what is The Speech? You will have one or more conversations with your client preparing her for her deposition. The Speech is crucial. The Speech can make the difference between a bad deposition performance and a good one and a difference between a good deposition performance and a great one. It's part instructional and part motivational. It is part paint-by-numbers and part theoretical. It's part a lecture and part conversation. It is how you train your client to give the best deposition she has ever given and will ever give. You are a teacher, a coach, a preacher, and psychologist, all wrapped up in one when you give The Speech. Don't underestimate the power of The Speech. Don't devalue the process. Fail to appreciate the power of The Speech and run the risk of having a client deposition that goes off the rails. And so when you're communicating with your client, there are certain aspects to your demeanor and your approach that you must take and appreciate when speaking with them. First of all, you are the lawyer. And even if the person you're speaking to is a lawyer, you're the lawyer in charge of this case and you have to come across with certain level of confidence and gravitas. You have to own the room and be in control of The Speech and the presentation you're giving. You have to make it clear to your client that this is not your first rodeo. That you have done this with some frequency and regularity and that you fully appreciate and understand what is expected and what must be done. And it is very important early on for the client to understand that even though the deposition may only take a few hours, that the preparation will far exceed that. And I've taken times where I've prepared a witness for several days over a course of several weeks to ensure that that witness, or I should say my client, is fully prepared to answer the questions posed to him or her in a manner that best represents the truth and his or her case. And again, it is such a foreign thing because the whole point of a deposition- I take lots of depositions- is to get the information I want in a manner I wanted. I want admissions on my terms and I've done enough depositions and I've tried a lot of different procedures and processes. And by the way, another recording I've done that you can probably find under my name is Preparing for Taking Depositions that talks about my approach to depositions and how to get the information you want or need and how to ask questions to do that. And you may find that helpful. Today, we're obviously talking about defending your client's deposition, but it's important when you are preparing your client for deposition to always put yourself in the shoes of the person who will be questioning them. You'll have to think through, "If I was in the interrogator's shoes, what questions would I ask and how would I ask them?" It's work to get the information I want in a manner I want. It's akin to all these police procedurals you watch on TV where the suspect is put into a box and you have good cop/bad cop and you have different forms of questioning and different tricks of the trade to get the deponent, or I should say the suspect, to admit to whatever crime he's in the box for. And this is really not that dissimilar. Obviously, it's a much nicer place. You're generally in a nice boardroom or conference room. People have coffee and drinks. The opposing party will try to put your client at ease. But never should you forget, and certainly your client should never forget, that the person who's going to be conducting the questioning and proceeding with the deposition is not his friend or her friend. They're there to get the admissions they want and that they need to win the case. So what is The Speech? Each speech is slightly different based on the facts, the law, the case, and the client. But looking back, The Speech has been remarkably consistent for me over the years. To be effective advocates, each of us has to hone and perfect a Speech and share it with fervor, earnestness, seriousness, and help. We have to balance equipping and encouraging our client with arousing sufficient concern and when necessary, fear, to ensure that she performs optimally when she testifies. And let's talk about fear, confidence, personality, emotions, and so forth. Each of us is different. Each of us has a different personality. Each of us has a different manner of communicating. Each of us processes information differently. Each of us have different levels of risk and risk avoidance or risk acceptance. Some of us are optimists, some of us are pessimists. Some have very strong opinions, some don't. Some have strong egos, some don't. Some of us come across as very confident, some don't. And you need to first gauge and understand and size up your client and understand what you're working with. What is your client like? Who is she or he like? Are they somebody who's confident or not confident? Somebody who is verbose or terse? Somebody who says a lot or is particularly laconic? You are trying to figure out who you're dealing with in terms of your client because your client is going to ultimately be him or herself largely in deposition. And there's only so much you can do to change somebody, especially the older we all get, we are all more set in our ways. And I've come to learn when preparing a witness for a deposition that I gotta work with what I have. You know it's, in terms of a sculptor, if you decide to work with a specific type of stone or material, there's certain limitations with whatever you use and you have to work within those limitations. And preparing a client for deposition is no different. I'm not gonna be able to change who that person is, so I have to figure out who that person is, figure out where the blind spots and obstacles and challenges are and help that person address those issues, even if it's only for a few hours for the deposition, to ensure that the testimony is as strong and as good as we need it to be. And so delivering The Speech, there's no right way or wrong way to deliver The Speech. No two attorneys will cover all the same subjects or offer all the same advice. No two attorneys will share the exact same tone, approach, anecdotes, examples, or rules of the road. It's like listening to the same jazz tunes played by different jazz ensembles. Each provides its own interpretation and improvisation of the tune. My Speech is not meant to be your Speech. It is not meant to suggest your Speech is incomplete, incorrect, or insufficient. It's an approximation of what I say considering I'm not giving The Speech with any specific case or set of facts in mind. What I'm doing here today is generic. The reason I share it is to give you some idea about what to tell your client and how to say it. There's a substance and there's their style. And so we're gonna talk about both the things you have to deliver, the information you have to provide, and how to deliver it. Most of the information largely will be the same from case to case in terms of you trying to find all the relevant facts and all the relevant information that the client has or should have or knows or should know. And then's a question of how you prepare that client. And again, it is so important psychologically, emotionally, to really understand your client. And it's important that this process is an ongoing, long-term process that does not start happening a week or two before their deposition. It starts at the inception of the trial. It is something you're gonna inculcate and indoctrinate in your client so that they understand from the very beginning, One: that they will likely give a deposition. Two: that it will live on for the duration of the case and that what they say has a very significant and wide range impact on their case, good or bad. And that ultimately, you can train them like a personal trainer, but it is up to them to do the work. It's like a boxer, for example. Somebody who manages or trains a boxer will ensure that they are running enough and jumping enough rope and sparring and doing the weights and so forth. But when they get to the ring and the bell rings, the manager stays in his corner and it's the boxer that does the work. And the manager has very little to do except during the breaks to help him out and unfortunately maybe even throw in the towel. But ultimately the boxer has to do the job, not the manager. And so I explain to the client and I've already used several sort of metaphors and anecdotes so far, but I explained to them that I'm going to train them, teach them, inform them, instruct them, so that when it is time for their deposition to proceed, they'll be ready to go ahead and do their thing. And what I hope will happen is that at the end of the deposition, the client will come back to me and say, "You know what? That deposition was pretty easy. What you put me through was much worse than that and I was expecting it to go much worse. I was expecting there to be tougher questions. I was expecting it to be trickier, be more confrontational, but you really prepared me well and there wasn't a single question I couldn't answer parry in a way that I thought helped our case." That's sort of the ideal. Obviously that doesn't always happen. Depending on the factors, lawyer, case, you may have an uphill battle but you're trying as best as you can to equip your client. So let's talk about my Speech. And we start with by making your client feel comfortable. Opposing counsel has asked to take your deposition and your client and your deposition is an opportunity for an attorney to ask a witness under oath what she knows about the case. At the deposition, I would give The Speech. I would say I, you, opposing counsel, and a court reporter would be present. We'll sit around a conference room much like the one I'm sitting around with the client. The client will sit at one end of the table, I'll probably sit next to them and the court reporter will sit on the other side of the client and the opposing party will sit across from the client or near him or her and will ask questions about the case and they'll ask many, many questions. And so that's sort of the summary. And I basically explain to them pretty early on what this is. Understand that you're dealing with a lot of preconceptions and a lot of notions about what a deposition is. Your client, no doubt, will have seen and watched his share of law television shows and law movies and legal movies and law firm movies and trials and so forth and some reality base and who knows what else. And they will have an understanding or appreciation of what a deposition is. And if you think about it, when it comes to depositions, the ones we've seen on TV, what do we remember? One, they're very short. Two, they're very confrontational. Three, often the witness or the attorney says or does something that seems out of the ordinary or unusual. Sometimes there's some confession, almost like a Perry Mason moment. And that's what people think deposition is. They think it's like 10 minutes, somebody blurts everything out, and somebody wins. And that's obviously all done for dramatic effect and none of that is true. Depositions, for the most part, are kind of boring. They're kind of reminiscent of what soldiers say war is like: "90% boredom and 10% pure terror." You know, I've read a number of books about the Vietnam War and you had a lot of these American soldiers in the jungle where most of their days they were just walking around or sitting or sleeping and then suddenly there'd be a firefight. And so 90% of their day was boredom and 10% was just sheer terror. And that's kind of what deposition is similar to, where a lot of the questions being asked and a lot of the answers being provided are generic, general, but there's always something there. It doesn't take that many questions to completely upend the case. And if the other attorney knows their job and knows what they're doing, they're going to find a way, however they can, to get your client to make certain admissions that will either prevent you from moving for Summary Judgment, that will enable them to move for Summary Judgment, or will put their case in a much better position in terms of settlement. It's not uncommon when I go to mediation that I will read from the transcripts of the opposing party and some of the witnesses where I have procured very favorable testimony. And I will share that often in the mediation statement. I send the mediator and I may share screen these days when we do mediations online or I may just provide copies to everybody when I meet people in person and it will be page and line statements made by the opposing party and it will be statements that clearly support my case. And since I do that, I'm fully aware and conscious that the other side plans on doing that as well and that their intention is to try to get that sound bite. So much of taking depositions, and some deposition transcripts may run 100, 200, 300 or more pages, are the half-dozen or more sound bites that we've procured that are very instrumental in the case. I spoke earlier about themes and theories. When we talk about themes, sometimes we talk about catchphrases we want to use. I often try to get witnesses to agree with, or actually state, my catchphrases so that I can use them later in motions, in mediation, or a trial, and the other side's gonna do the same thing. And so typically what I tell my clients early on is that we have a theme and theory and I want you to play and support them. But the other side has a theme and theory, too, and there is this tension where if you compare it to a tug of war and there's that middle flag. You want his answers to move the flag toward their side, toward the client's side, versus moving the flag toward the other side. So what is this deposition for? You know, I tell them, and again, I would say, your deposition will become part of the record for this case. We lawyers will use it when we argue before the court. Or if the case goes to trial, will use it when we present our cases to the jury. Depositions are very important, and your deposition, you being the client, it's the most important deposition in the case. It's the most important because what you say can help you win the case or lose it. Win it or lose it. And when I make these communications, again I'm trying to think through the client and the type of client I have and who I'm dealing with. And it is so important again to get to know your client. Your client may be scared. May be so scared that the idea of sitting down and answering questions for several hours is overwhelming. And so you're gonna have to sit down and help the client overcome that fear. You may have a client that is so full of themselves that they don't wanna listen to you 'cause they already know how to answer questions because they've been deposing before and they've heard all this before. That type of client scares me to no end because if the client's not gonna listen to me, they're likely going to blurt out all sorts of things during deposition and ruin their own case. And worst of it, they'll blame you for not treating them better after the fact and preparing them better. And then there's sort of the middle-of-the-road client, the one who is new to this, but takes instruction well, has a generally positive disposition, and is willing to listen to you. And so you have to along the line of the spectrum from the most scared, preoccupied, concerned client, to the most dominating, controlling, manipulative client and to everybody in between, you have to figure out where your client falls along that spectrum and adopt and change and modify your Speech and the way you train that person accordingly. And so why a deposition? Now to better understand the significance of your deposition, I would tell the client, "Let's take a step back and discuss your lawsuit as a whole." Each side in the case has to prove or disprove certain elements to win. Early in the case, counsel for each party will analyze how to win the case on behalf of her client. And so I will sit down and explain the case and typically, not only do I talk about the deposition and what to expect in a deposition of where it's going and what needs to be done, but I also just generally talk about the case as a whole. I'll talk about the lifeline and the trajectory of a case. I'll explain the part, you know, if you're already in the point where a complaint has been filed, I'll explain what to expect next. We'll be responding to the complaint. We may have a motion to dismiss, or we may answer with the affirm of defenses, explain what those terms mean, and then we'll likely engage in discovery. And discovery is both written discovery and depositions. Written discovery, I would explain the interrogatories request production, request for admissions, and then I would explain what depositions are and that's a large part of that. But also explain any investigation we're conducting, any factual investigation, any legal research. I would explain the legal issues as best as I understand them, the issues that we know will comport or sort of define the case and the legal issues we still need to develop and gain some additional research on and the facts and what facts we know, what facts are missing. And typically I'll discuss a concept I've determined the X factor. In any case, there's an X factor. In any case, no matter how many facts or how much information or how well you know the law, it's almost impossible to have everything. There's always the X factor. Something that's missing. Something that you don't know or you're waiting to learn or investigate. And the more X-factors there are, the more missing puzzle pieces, the less capable you are to provide an accurate evaluation of the case in both liability and damages because there's too many unknown factors, too many variables that you can't control or appreciate or understand. And so what I do early on in the case is I try to reduce the number of X factors by as much as I can, appreciating that in all livelihood, no matter how long I'm working the case, I will probably never track down every last bit of information, every last document, every last piece of evidence. That's almost an impossibility. It has happened, but typically you know the best you can expect is getting maybe 98% of everything out there. And typically you're dealing with a lot less. Witnesses move on, some pass away, documents are shredded or destroyed. accident scenes, if you do accidents, can change. You know, things happen. Law changes, witnesses change, clients change. Nothing stays the same and the process of nothing staying the same, it's hard to always understand or appreciate what you're dealing with. But I try to reduce the X factors as much as possible and I explain the trajectory of the case with the client through that. And you know, I proceed, after we talk about depositions, the concepts of mediation and trial. And I explain what to expect at trial, what we're trying to do, how I try to do everything in the case with trial in mind so that every question I ask in a deposition, any interrogatory propound, every document I seek, somehow is done for purposes of advancing our needs and our goals at trial. And so why my deposition? And again, this is all couch in terms of talking to your client. I say, "What you say," , "The record you create with your words will help us win or lose." at Summary Judgment, mediation, and trial. We want to prove or disprove certain facts. Opposing counsel wants to do the same. What you say in depositions are considered admissions, statements you make where you admit this fact or deny that fact, and which can be used by either side to prove their case or disprove the other side's case. What you say in deposition has consequences. What you say can help you win or cause you to lose. What you say may end up in our motion for Summary Judgment in support of our case, or in theirs, in support of their case. And so appreciating the gravitas of the circumstances and appreciating what somebody says and how it will affect the outcome of the case is really important. 'Cause this really is unusual. I mean how many of us have been actually deposed and go through this and think about all the conversations we have all the time and the idea that something we say can ultimately complete change how a case is managed, handled, and its outcome? And that's a lot to to deal with. And there's a lot of gravity involved with that. And so it's important to really explain to the client, maybe provide client anecdotes of cases you've had where a witness or a client, maybe yours or the other side, testified to something and either helped them win their case or dismantled it, helped them prevail or caused them to lose, so that they have some solid examples that they can think about and appreciate that this isn't something you're just making up, that this isn't just a casual thing and you're trying to exaggerate the implications of what they may say. They're real consequences to the words that come out of their mouth when they raise their right hand, and so they need to understand that and providing real concrete examples is a good way of doing that. And explaining to them what may happen if they're not clearly and closely paying attention to the questions and answering only those questions being asked. And so I'll talk about how lawyers are clever and the clients should be wary. Now lawyers have ways of putting words into a deponent's mouth. We have ways to make parties admit things without them appreciating they're admitting them until it's too late. We have ways to question, befriend, cajole, distract, intimidate, pressure, flatter, and countless other tools at our disposal to get deponents to say we want them to say. And because lawyers want to use you to win their case, they are not your friend. And I think explaining that is so important. When I depose somebody, especially when it's an opposing party, I make every effort to kind of be Mr. Nice Guy. I'll come in, I generally don't dress up for depositions instead of wearing a suit and tie. I kind of wanna make a little bit of more informal. In Florida, that's perfectly normal. I'll wear slacks and a dress shirt. I won't wear jeans or anything like that, but I'm not wearing the tie and the jacket. I generally sit fairly close to the deponent, even when it's been by videotape. I make a point to get them water. I explain to them they can take as many breaks as they want. I have my tone be less confrontational, my cadence, my diction, all very friendly, as if we were just sitting around drinking iced tea on somebody's porch. And the reason I do that is that I want to lower their guard because if their attorney did their job, they know we're about to engage in battle. They know that I'm trying to get them to say things that they don't wanna say, that I'm trying to use them to prove my case and undermine theirs. And I'm trying to get them to believe, "Oh, my attorney, this guy's nice. Mr. Ramos, he's a nice guy. He's there hanging out. He's relaxed. He's not even dressed up for this. He's offered me water. He brought some bagels or croissants or whatever and we're just gonna have a conversation. I'm gonna answer what he wants and we're gonna move on." And so when it comes to preparing my client, I drill in and I drill deep and hard and fast. "That opposing party is not your friend. The opposing client, his attorneys, they're not your friend. And the attorney questioning you, the client, is doing everything they can to trick you, if necessary, to give them the answers they want." And it's always funny I find when an attorney behaves, acts friendly, overly so, the deposition proceeds, they go past the preliminary questions, they get into the harder questions, the more central, more dynamic questions. And once they go to the heart of the matter and my client isn't playing ball, my client is following my rules, they're only answering the questions being asked, they're taking their time, they're thinking about their answers, they're making sure they understand the questions. And the opposing council starts getting annoyed, starts getting frustrated, all the things in their bag of tricks isn't working and they start getting flustered and suddenly that part comes out and my client's like, "Oh yeah, that's right. That's what Frank told me. That's the real person. He's not trying to be nice 'cause he's nice, he's trying to be nice to get something and when that didn't work, he's getting frustrated," and the real opponent comes out in his behavior. So impeachment, I explain to them impeachment, I talked to 'em about what impeachment is. Again, it's a concept that we lawyers know, are very familiar with. We've all done it at trial. Sometimes we've done it in depositions. Sometimes we'll have a witness who's has given prior testimony and we'll impeach them in their own deposition with a prior deposition they've given or a prior statement or something else that they've signed and attested to. And so I explain impeachment. You make an admission in deposition, it's terrible for your case, and at trial to cover it up, you say the opposite. Well that's lying. There's a term we lawyers use and that's perjury. What is opposing counsel do? He reads your deposition testimony, makes a point of telling the jury you made the statement under oath under threat of perjury. and yet here you are contradicting yourself in a court of law. What does a jury think? It thinks you're lying to them. And what's the significance of that? You lose credibility. You lose credibility. We're about to get into credibility in a second, but I explain the whole concept of impeachment. I explain how it's actually done, procedurally. How in deposition, or a trial I should say, I catch a witness in a lie or I catch a witness contradicting the prior testimony, and I confront the witness with their prior testimony. I read the prior testimony into the record so that the jury can hear it for themselves and can see that this witness is now taking a different position or posture or making a different contrary statement to protect themselves. And there's nothing worse than being caught in impeachment. It affects your credibility. And once you lose credibility, I explain to the client, with the jury, you've lost your case. This is another reason to choose your words in deposition carefully. You don't want to be impeached with one of your poorly-thought admissions. Like they say about letting worms out of a can - No matter how hard you try, you'll never get them all back in. And so the client understands that there's really no do-overs. And yes, in Florida, as in most other states, you can go ahead at the end of the deposition, request that you read the transcript, you get the transcript from the court reporter and you can make changes even if they're substantive ones. And ultimately you open yourself up to second deposition. But that's problematic, 'cause again, you'll be opening up the client to second deposition, that way they can explain why they're changing their answers. Clearly, it's being explained to them that the answers weren't appropriate and now they have to fix it. And these are all things that could have been avoided with better training and better advice and better counsel. And so I always talk about juries and I talk about juries early on in my communications with my client and I explain to them the jury trial and how juries see and perceive and evaluate matters and how in Florida, for example, most juries are six-person juries, except if you're gonna have a death penalty case or it's an eminent domain case. And I handle eminent domain cases. I've had a number of 12-person jury cases or trials, but for the most part, they're six-person juries. These are just random people like your client. They come from all walks of life. Some are younger, some are older, some are working, some are retired, they're male and female, they're black, white, or Hispanic. They all have different backgrounds and personalities and they're all over the political spectrum and they all have their ideas and perceptions. And what they generally focus on is two things. I think one, they focus on common sense. There's actually an instruction in Florida, as in most states, about jurors using their common sense. And two, they're trying to measure a person's credibility. They're the fact finder and they get to weigh each witness's credibility. And so it's important from my vantage point that my case makes sense to them, but it's very important that my client is credible with them. And if my client is not careful in deposition, he or she may lose a lot of credibility and I explain that to the client. And so then I talk about how to excel at deposition. After explaining and providing some background as to the issues that come with giving a deposition and the importance of it, I'll explain how to excel at it. And- Sorry about that. So deposition process. So I go through the facts of the case as I know them and as they know them. And so I review and discuss all documents that may be shown in deposition. And I am a strong believer that your client should never see a document for the first time in deposition. And it's important to track down any and all documents the other side may have, any and all third-party documents that may be relevant to your client's testimony. All internal documents you have, and sit down with your client and discuss those documents with them, understand them, appreciate their significance, explain why they signed it or the recipient of an email or they're blind-copied in an email, what they knew and when they knew it. I cannot, for the first time, and I shouldn't, for the first time, have a client see a document for the first time in deposition. That is highly and very problematic. And so one of the things I do is I try to informally and formally, either through informal means, through asking clients or third-parties or through FOIA requests or through Sunshine Act requests, which are done in Florida, or through formal subpoenas for record. I make sure I have everything I can. Request productions. And so when my client sits down for deposition, he or she isn't being confronted for the first time with some smoking gun document. And I'm happy to say that in 25 years of practice, I don't believe I've ever had a client confronted with a smoking gun document. And I think that's how I was trained and that's how I train others, that one of the most important things you can do to prepare your client is to make sure that they've seen everything, that they understand the content of all the documents. They have testimony or story or appreciation of what they have to say about each of those documents and that they're prepared to address them. And then I talk about the rules of the road, the do's and don'ts, what to say and what not to say. We all have different rules of the road. We all have things we tell clients to say or not to say. You know, typically what I'll tell them, and I may go through this in a little bit in greater detail later, is obviously, you know, tell the truth. Wait two seconds before answering your question. And that's my two-second rule that I learned from a jury consultant many years ago. And it's important for clients, no matter what the question is being asked, to say "One Mississippi, two Mississippi," and then answer. First question typically in deposition, "What's your name?" "One Mississippi, two Mississippi," answer. "Now, what's your office address?" "One Mississippi, two Mississippi," answer. "Where do you work?" "One Mississippi, two Mississippi," answer. And why I do that is that I want the client to control the speed and the pace of the case. I want the client from jump street to take time to answer every question. And it seems suspicious when a client is going through questions and answering at a very quick pace and suddenly, they slow down. Especially if it's being videotaped, it seems as if now they're trying to hide something. Maybe you now hit a nerve and now the other side knows and digs deeper. And this is hard by the way, this is really hard, but this is very unnatural way to do things. You know, we have conversations and not only are we talking back and forth in a quick pace, but sometimes we're interrupting each other, sometimes we're assuming the other side's question. And what I'm telling clients to do is just against every visceral aspect of their form of communication, I'm asking them to take a very simple question that they easily know the answer to and taking two full seconds to respond to it. So that's another rule of the road, answering only the question that's being asked. You know, I often do the questions with the clients, say, "Do you have the time?" And clients will say, "Yeah, it's 2:15." I said, "Well, that's not what I asked you. I asked you, 'Do you have the time?' And the answer to that question is 'yes'. And then you make me ask the second question, 'What time is it?'" That's a common one that's used. I think I've heard most every lawyer use that as an example. But like, "Do you have the time?" The answer to that question is "yes", not what time it is. And then I'll talk about making sure they understand the question. Make sure to interrogate the interrogator if they don't understand a question, to ask to be repeat it or rephrase it. Often, something else I tell clients to do is to answer the question with the question, not to simply say "yes" or "no", but to actually take the question and turn it into a declarative statement with their answer. And I find, again, it's a way to control the deposition. It avoids any misunderstanding to the question they're being asked. Often, questions may have multiple parts. I can object to the form of the question, but ultimately, the client has to answer those questions. And so if they take the question and answer it with a question, I think that goes a long way in diffusing any complicated questions, any assumptions, and again, slows down the pace. It defines or lets them to control how the deposition's proceeding. And now I'll discuss the categories and types of questions to expect and how to answer the tough questions that you expect your client will be asked, based on the facts of this case and the applicable law. And then I'll perform a mock cross examination. So you know, in your most depositions, typically, most of the initial questions are general. They talk about a party and who they are and where they work and how long they've been doing what they're doing. And they'll get some educational background and training and experience and learn more about that person. And ultimately, then, will go into the facts and circumstances of the case and what they know and what documents they have and what they've seen and whether they've wrote this document or copied in that one or whatever it might be. If it's an accident that they observed or witnessed and what they saw. And so having, again, been involved in so many depositions, I'm sure many of you have as well, you can generally expect not only knowing what categories of questions are gonna be asked, but more often than not, what specific questions we're gonna be asked. And of course that comes with experience. And the more senior ones of us have been doing this for 25 years, we have just taken more depositions. We've put in more reps. We've done this more often. And so we are less and less surprised by the questions that are coming down the pike. So in respect of how long you've been doing this, I mean, if you know your case well, you know the facts and the law, and you can get a general sense and have a pretty good understanding of what to expect, explain to your client what to expect. So the mock deposition. When I talk about the mock deposition, I say, "Expect this preparation session will take all day." Preparing a client for deposition is a time-consuming process. Anticipate every difficult question your client may be asked and prepare them on how best to answer them truthfully. Your client will answer all the questions truthfully. She will take an oath to do so and will abide by that oath. But there are right ways to answer questions and wrong ways. There are answers that will help and those that will hurt. It will take the day to ensure your client understands and follows the rules of the road I will teach you and for you to learn to answer questions just right. In fact, there have been times I have had to spend two full days with the client to prepare them for deposition. And now that I'm thinking about it, I think there's a client that I spent several days with. So in return, ask your client to make themselves available for the time necessary to go from a novice deponent to an expert. And again, depending on who you're representing, your clients may not wanna spend the time, may not wanna spend the money. Obviously, it's not inexpensive, especially if you're charging by the hour and not doing this case on a contingency. It's not inexpensive to charge a client for a day or two days or several days worth of work for nothing else to prepare somebody for deposition. It seems unnecessary. It seems excessive. It seems as if you are simply building the case for the sake of building the case. And that is clearly not the intention because if a client says something or testifies or makes an admission, suddenly, the valuation of that case can be completely different. If you are on the defense, for example, you're charging by the hour and you're charging the client by the hour and you've spent two, maybe three full days over the course of several weeks to prepare a client, they may have some concern about your bill. They may get a little indigestion from it. But that is much better, paying you for that time, than having that client make an admission that completely ruins their case and complete changes the dynamic and the trajectory and the valuation of that case. 'Cause you can't take that back. Yeah, sure, you can go ahead and I guess revise the testimony and so forth, but that ship has sailed at that point and whatever needed to have been done had to have been done earlier. And the place you find yourself then and there with a client making admissions they should never have made is a very different place that you would find yourself if they had been properly trained and educated and gone through sufficient and adequate training, so as to never have provided that answer in the first place. So part of this is educating the client, informing the client, and helping them appreciate that this is a long, and yes, expensive process, but ultimately, if they do their part and they let you do yours, it will be worth the time. And so I talk about the facts of your case. I go through everything the client knows. I'll say, "You know and remember about the facts of the case." For areas you don't know or remember, meaning the client, I share it with your client what you have learned from other sources and hopes of refreshing your recollection or filling in the blanks. Your client needs to be honest with you, even about any bad facts. Each side must deal with bad facts. Bad facts have a nasty habit of always making themselves known during a case. No matter how much a party may try, bad facts seep out like contaminated fluids in a landfill. Trying to hide them won't help your case. It will only hurt it. Your client can help you by telling you the good, the bad, and the ugly. As we go through the facts, prepare a chronology together and discuss what facts, if any, are missing. And so this is a process I go through any case. There's never a perfect case. Whatever side of the 'V' you are on, however strong your case you think it is, there are certain things that are probably gonna undermine or affect your case. And you need to know what those are. I don't like surprises. I'm sure you don't like surprises either. I don't wanna hear it for the first time in deposition my client making some admission I knew nothing about and completely changed the trajectory of a case. And especially considering that a client's deposition doesn't take place immediately; it takes place after there been some fact discovery and so forth, to find out all the way then and there is problematic. And so I tell my client, I say, "Look, I'm your lawyer. What you tell me stays between us, but I need to know the good and the bad and the ugly. And so tell me everything you know about this case. And if there's a bad document, there's a smoking gun, there's some sort of information, I need to know it because perhaps we approach this case very differently. Perhaps you have evidence that we haven't even produced yet and we're not under any obligation yet to produce, but we'll be asked at some point that completely undermines your case and we can't hide it or destroy it. We have ethical obligations in the course of litigation. Me as a lawyer and you as a participant in the judiciary process. And therefore this may be a sort of case we have to settle on terms and maybe we don't settle on the best terms, but we settle it on okay terms because we know if these bad fires come to light, we're gonna get destroyed, and any chance of settling on favorable terms will evaporate and just disappear." And so much of that is learning as much as you can from your client as to any information or any documents they have. And so as to relevant documents, gather all the relevant documents, including the Complaint, the Answer, the Answers to Interrogatories, relevant correspondence and e-mails, and any other documents that may be shown at deposition, organize the documents chronologically, put them in a binder with a table of contents, and create two copies - one for you and one for your client. Try to get the copy to your client at least two weeks before your prep session. My experience has been that clients who read these materials before their prep session have a much more productive session and perform better at their depositions. Think critically about these documents, their role in the case, and how they will be addressed at the deposition. So I literally create a binder in every case. And these days it's more of an eBinder because we've gotten away from looking at documents and hard copies. And I'll email them, put 'em in a box, or Dropbox, but it'll have all the relevant documents. It'll have every document that has relevant facts to the case or that I believe may be shown to my client in one way or another. I expect their Answers to Interrogatories will be shown to them. I expect, if they're on the defense side, they'll be questioned about the affirmative defenses. I'd expect that any email they sent or received relevant to the case will be shown to them. Any letter that they sent or received, if there's video, somehow relevant video, or there's some other item or there's some product involved, they're gonna be asked and discussed and talked to them and asked about those sorts of things. And so I put everything together. I put in a chronological binder and sometimes these binders aren't very large, some of them are voluminous. And I literally go through every document with the client. And yes, that is is a lot of work. I know it is a lot of work, but again, I do not want my client to be asked about any document for the first time in deposition, even if I think I know how they're gonna answer the questions, sometimes they surprise me. They can surprise you. Sometimes you think their answers will be very innocuous and it turns out to be anything but. Sometimes they actually provide something that's actually very valuable to you. Sometimes they provide you a certain insight in terms of helping you evolve and develop your case theme and theory, and it really helps you. But either way, I need to know and review every document the client may be shown in deposition and understand what that person, that client, knows about that and how we're gonna talk about it 'cause we need to have some context about that. And so we talk about critical rules of the road. I've talked about this briefly before, but let's go through these again. And again, each of us have these rules of the road that we share with clients. I have a bunch. This is sort of a summary of them. Not all of them, but sort of the highlights. First and foremost, the client has to tell the truth. In Florida, if a client perjures themselves or tries to commit fraud in the court, they're toast. They're toast for a whole bunch of reasons, but their case is probably gonna be dismissed. And so they're not doing themselves any favors by trying to lie about something. And these days, even if you wanted to, there's no more secrets. I mean, there's such so much data out there on our phones and on the apps and GPS and our smart watches and social media and everything else, there's just no way to hide the truth anymore. You know, with e-discovery, people are gonna get a copy of the person's phones or their databases and that document that he claims never existed is gonna be found, that email they claim they never sent is gonna be discovered. So just be truth. If it's a bad case, it's a bad case. And as a lawyer, you don't make the facts and you don't wanna make the client's problem your problem. The best thing you do is find everything there is to find out and just have the client tell the truth. Now listen to the question carefully, wait a full two seconds, and respond. Take your time to think about the questions before responding. This is a two second rule, the two Mississippi rule. And again, you're trying to control the speed and the cadence and how the deposition is proceeding. Answer only the questions asked. Don't volunteer. Don't offer a sentence, phrase, or even a word more than you have to. That's really important. It's very important for the client to only answer the questions asked. Only answer your questions you understand. You have the right to ask opposing counsel to repeat a question or clarify if you don't understand it. And don't guess. If you don't know an answer, say so. You're going to be asked a lot of questions, you won't have answers for all of them. "I don't know" is a perfectly acceptable answer. And if you're asked a question about a document, read it before answering it. Let me go back to the "I don't know." I think the four most common answers a client can give or any witness can give is "yes," "no," "I don't know," and "I don't remember." And those are all perfectly appropriate. Now again, I had mentioned that you want to have your answer summarized or encapsulate the question, and that's fine. And some witnesses, you'll be able to get them to do that. Some won't. I can often get witnesses to wait the two seconds. I have a much harder time getting witnesses to restate the question in their answer. And that's something I've worked with with clients. I often get mixed results. I typically get positive results for waiting, but in lieu of that, I tell them that the most four common answers is "yes," "no," "I don't know," and "I don't remember." Again, we're trying to only answer the questions being asked. And so we talk about expected questions. Typically opposing counsel will begin with general questions asking about the person's background, your client, your education, your job, and your experience. From there, she'll ask her about the facts of the case and get into excruciating detail about what your client knows. She will ask her about every conceivable document, witness, and fact relevant to the case . At deposition prep, approximate, as best as you can, every question you expect the other side to ask your client and discuss in detail how to answer the tough questions, the trick questions, and the crucial questions. Getting your client's answers just right to these questions is the most important part of the deposition prep. Again, your client can tell the truth in such a way that helps your case. You can tell the truth in such a way that hurts it. We will focus on how to do the former while avoiding the latter. And so again, there is this tension between being truthful but also being truthful in a way that helps your case. And again, it is not your client's role to volunteer information. It's not your client's role to drop a roadmap for the other side to win. Your client's only job is to answer the questions being asked and to answer them in a way that's both truthful but also helpful for your client's case. And so what I typically do is- I think we all kind of know what the tough questions are gonna be. Not only what they are, but how they're gonna be asked. And I ask them, and then I work with the clients on how to answer them truthfully, but effectively. And sometimes that's a lot of work. And this is generally the hardest part and the most grueling part of the deposition, knowing the really tough questions that are being asked and working with your client through them so that you're both satisfied with the answer. And sometimes the answer isn't great, and sometimes the answer is pretty bad, but it could be much worse. And so instead of having an answer completely bury you, maybe it just is kind of like getting swatted in the face or something. Not great, but certainly better than the alternative. And so a lot of that time is spent with ensuring that the client knows what to expect and is prepared to answer those questions. So for the mock deposition, I assume the role of opposing counsel and I do to the client what you'd expect that the other side will do to them. I ask the tough questions. I keep asking them. I'm persistent, I'm clever, I do my best to get the client to make admissions that help the other side and hurt you. I tell the client not to be offended, not to be surprised. I'm kind of not being their friend here. I'm basically playing devil's advocate and sometimes I can be very aggressive, and I don't mean that in a necessarily rude way, but I'm really trying to hammer the way I expect the other side to come across. And so your goal is to put your client through the toughest cross-examination they ever go through, tougher than what opposing counsel will put them through so when you're done with the deposition, your client says two things. "I was expecting it to be much tougher" and then "Opposing counsel has nothing on you and your mock cross examination." That's kind of what I want. That's the expectations that I have when it comes to preparing clients for deposition. So the mock deposition review I would videotape a portion of the cross examination and watch it with your client so you can discuss what you like about the answers, the diction, the body language, the facial expressions, and the like, and what can be done to improve upon them. And what I do, we all have phones, by the way. There probably was a time that this probably wasn't as easy to do, but now we all have phones, all the phones have video cameras, and it's easy to do that. And typically what I'll do is I'll have the phone set up either my hand or in some sort of holding device, and I'll record the client as I answer the questions and then we'll watch the video together. I'm not recording the whole mock examination, just certain things. And so I'll go through this process a few times until we both feel comfortable about how the client appears on the video. And this whole process is very unnatural. Sitting in a conference room, being asked hours of questions under oath with a person writing down everything the witness says. But by conducting a mock cross-exam and videotaping portions of it, you'll help your client get acclimated to the process and be prepared for it. So ultimately what you're trying to do is get the client to feel comfortable and natural. And we all have certain idiosyncrasies and certain things that we do. You may find that your client moves around too much. Your client likes to play with a pen so you make sure they don't hold a pen in deposition. They don't make eye contact, they do this or do that. And even if it's not being videotaped, although that's happening more and more, especially on Zoom, it's so easy to do. But even if it's not being videotaped, you don't want your client sending any cues or clues to the other side to suggest that they're onto something. You know, they're closely reading your client's body language to see if there's some way to undermine or attack them. And so if you can get your clients to address whatever behaviors they may have that sends out- So they're not wearing their heart on their sleeve and they're coming across as being confident and direct, then that goes a long way. And so we can never anticipate every question that will be asked or everything that may occur, but with this advice, you can tell your client they'll be ready as well as they can be for the deposition. And that's kind of how it is. You know, again, it's a long process, not an easy process. It is a time-consuming process. It's an expensive process. And the more important your client is, and I don't mean that facetiously, I mean it like perhaps they are a senior director, maybe even an Apex person in their company, the less time they're gonna wanna give to you. And it is important that in interacting with your client that you come across as confident, that you explain to them the importance of this and that it will take time. And that may require you seeing them after hours, maybe divvying up your preparations over a longer period of time. So instead of seeing them for a full day, you're seeing them for bits and pieces. And quite honestly, for certain people, that works bad. So you have to understand your learning style of your client, and your client may be the type that would prefer to have long blocks, but often your client may only wanna have shorter blocks. And I think we learn more in shorter periods and longer periods, so those are all things to keep in mind. My name is Frank Ramos. I'm at Clarke Silverglate here in Miami. I've done lots of depositions. And you're available to reach out to me through my website, miamimentor.com, or you can find me on LinkedIn. I go by Frank Ramos. I'm easy to find as the Miami Mentor. I post daily. I've been doing that for over six years. I have a large following. You're welcome to follow me. I can't accept any new invitations, but you're welcome to follow me anytime and I hope you enjoyed this video and the other ones I've done. Thank you.

Presenter(s)

FR
Francisco Ramos
Partner
Clarke Silverglate, P.A.

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                                                            December 31, 2026 at 11:59PM HST

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                                                                December 9, 2024 at 11:59PM HST

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                                                                  December 31, 2026 at 11:59PM HST

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                                                                    December 9, 2024 at 11:59PM HST

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                                                                    December 9, 2024 at 11:59PM HST

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                                                                    December 31, 2024 at 11:59PM HST

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                                                                                  December 9, 2024 at 11:59PM HST

                                                                                  Status
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                                                                                    December 9, 2024 at 11:59PM HST

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                                                                                    December 9, 2027 at 11:59PM HST

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