Turning Deposition and Trial Prep into a Pre-Op

As a lifelong avid athlete,   it still amazes me that I managed to get to age 46 before having my first surgery.    And at that the surgery—to repair a deviated septum—had nothing to do with my “weekend warrior” activities.   Yet as something of a control freak I was full of angst and worry about a procedure that,  from the standpoint of the surgeon,  was entirely rudimentary and routine.

I vividly recall the “pre-op” meeting with the surgeon and the anesthesiologist.    They explained every aspect of the procedure in a thorough and understandable manner.    I knew precisely how the surgeon was going to use both the scalpel and laser to perform the procedure,   how long I would be asleep,   the extent to which my vital signs would be monitored,  the nature and duration of the side effects,  the pain medication that I would given and its side effects,  and the probable length of my recovery and the limitations on my physical activities during the recovery period.    And while I was still somewhat anxious about the procedure that lay ahead,  much of my anxiety had been tempered by a simple 15-minute discussion.

Fast forward about a year from my successful surgery.    I’m about to take the deposition of the defendant in a will contest.    The defendant appeared in the reception area of my office suite about a half-hour prior to the deposition,  asking if his attorney had arrived.

“No, but I expect he’ll be here shortly,” I said in response.

“OK.   I’ve never met him before so I wouldn’t necessarily recognize him.”

I walked back to my office,  sat down and was both amused and stunned—amused that I had the opportunity to depose a substantially unprepared witness,  and puzzled that a colleague could adopt such a cavalier approach to deposition preparation.

This was far from the first time that this scenario had played out before my eyes.    I’ve been struck through the years by the degree of inattention that is paid to preparing clients for deposition.     Preparation is frequently treated as an afterthought,  a sort of “throw-in” to the basket of services counsel provides during the course of a case.

There is no known calculation of the number of depositions that are taken each year in litigation in the United States.    Suffice it to say, however,  that in any case involving meaningful monetary or property interests,  it is likely that deposition testimony will be elicited in an effort to narrow issues,  freeze witnesses’ recollections,  and gather facts.    The high rate of settlement of cases prior to trial—80 to 95 percent, depending on the jurisdiction—suggests the importance of depositions as a determinant of the “destiny” of any particular case.

So why does it seem that we’re simply not doing a good enough job as practitioners of preparing clients for depositions?   I have some theories,  none of which are scientifically grounded,  and which are open to questioning and debate:

1. We are less adept at placing ourselves in the shoes of our clients than doctors are at viewing the world through the eyes of their patients.   All doctors are, at one time or another, patients themselves; they know what it is like to sit in a waiting room,  be poked, prodded and scanned,   and have to wait for test results.   Litigators, by contrast,  have not necessarily been litigants.      When you haven’t personally experienced the anxiety of an event or process,  you are not as attuned to the physical, mental and emotional components of that anxiety.
2. Most of us have received little to no training in how to assist clients in managing the frustration, delay, stress and anxiety that is inherent in the litigation process.     Apart from client counseling competitions,  law schools rarely if ever offer courses on assisting clients with the mental health challenges posed by legal problems.   We are conditioned to treat the client more as a repository of facts and documents and less of the whole person with the range of human emotions.
3. Because we tend (intentionally or otherwise) to shroud litigation terms, processes and substantive law in mystery,   we create unnecessary distance between ourselves and our clients.      That distance has the tendency to lead to a slight–and in some instances, significant–indifference to the client’s emotions.
4. In the category of “If it ain’t broke, don’t fix it”,   we tend to believe that the preparation we do leads to effective client performance at deposition.

To be sure,  there are many among us who are doing a stellar job at preparation.     At the recent AAJ convention here in Boston,  I met a litigator from Maine who starts out each preparation session by asking the client,  “What scares you about being deposed?”    He said that the question begins a conversation that  ultimately relieves much of the client’s anxiety, while at the same time giving the client the confidence necessary to testify effectively.

This is not to say that one “size” of preparation fits all;  what works for my Maine colleague may not work for you.     The nature of the preparation should reflect the personality traits of both you and your client.     I have a colleague who does stand-up comedy on the side;   I suspect that his preparation is infused with humor that others might find awkward or even inappropriate.

The larger point here is that when the client steps into the deposition room,  you should be able to tell yourself without equivocation that he or she is in possession of the “three c’s”—comfort, confidence and competency–necessary for effective performance.     The only means by which you can reach that point is through vigorous preparation.