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On Behalf of | Oct 12, 2012 | Firm News |

CTLA – Civil Justice Foundation, Inc.

Litigating & Winning Employment Cases

Friday, October 12, 2012


Effectively Taking & Defending Depositions



Attorney Lewis H. Chimes
Law Office of Lewis Chimes,
LLC Stamford




Lewis H. Chimes




[email protected]




 In an employment case, there are typically two points of “confrontation” faced by our clients. The first, and most obvious, is at trial.  The second comes midway through the case when our client is examined under oath. In the Second Circuit, where I practice, more than 50% of contested employment cases are resolved, adversely to plaintiffs, at the summary judgment stage, and there is no trial. In the vast majority of other cases, they settle without a trial. In many cases, like it or not, the plaintiff’s deposition will be the dispositive event in the case.


In order to understand the defense objectives in a deposition, one starts by understanding what a deposition is not about:

1.    It is not a search for the truth.

Sometimes my more guileless clients will believe that if they tell their story in an open and honest fashion, the other side will “see the light” and understand their wrongdoing and come to the table. This is particularly true if the defense lawyer is friendly and civil in their approach. The client relaxes during the deposition and begins to trust the lawyer, who seems understanding. The client lowers their guard, and begins to give some candid admissions that destroy the case.


Clients and their attorneys need to be disabused of that notion. A deposition is the only adversarial proceeding the client will face before trial. The defense lawyer knows the facts, and what the issues in the case are about before the deposition. Defense counsel has already discussed the pros and cons of settling with his client before the deposition, and has chosen to go forward. The good points of your case are already known; you have stated them in your complaint, in your settlement discussions, and in discovery. Hearing them from your clients mouth is nothing new. His job at that point is simply to make the plaintiff’s case worse. If they do not do that, their client will be disappointed. If they are unable to do that on a consistent basis, they will no longer have any clients.


2. Cases Are Rarely Won At the Plaintiff’s Deposition, But They Certainly Can Be Lost


Generally the best comment after a plaintiff’s deposition is “they did not screw up.” There is nothing bad that happens in a deposition that cannot be fixed as long as the client gives the necessary testimony to get past summary judgment, and to surmount any legal obstacles.

In personal injury cases, the law pertaining to liability and damages is relatively straightforward and generally corresponds with common sense. The person who did wrong pays for the damages. It is not difficult for the client to understand how their testimony fits into proving the case.


Employment litigation, in contrast, presents a legal minefield. Our clients think in terms of fairness and just cause, but we need to show specific discrimination.Our job is to help our clients explain their facts in a way that navigates this minefield. If, during the deposition, our client testifies in a way that trips up one of the mines, it can be fatal, or seriously undermine your damages or claims.


The second best comment, but far less significant is “my client made a good impression, and will do well in front of a jury.” This observation is less significant, because we only get to a jury if the client’s testimony gets us past summary judgment.


3.   We Should Not Be Learning New Information at Our Client’s Deposition


In my experience, a good outcome for my client’s deposition is when none of the testimony is a surprise. If the testimony addresses the issues, good and bad, and the strengths and weaknesses of the case that I am familiar with and prepared for, then the deposition went fine. Indeed, it was an opportunity to hear how your client responded, and fine tune for trial has taken place, and your client has gained some experience.


If, on the other hand, if the defense explores areas relating to performance, your client’s workplace conduct, statements relating to the claims you have never heard before, or credibility issues in their background that you have not prepared them for, the defense attorney gets a free shot at your client and can do significant damage to the case.




An experienced defense attorney will attempt to use your client’s deposition as an opportunity to do many things:

1   Make your client uncomfortable in order to induce them to settle low to avoid going to trial;

  1. Make your client aware of embarrassing or unpleasant facts that may come out if the case proceeds to trial;
  2. Get your client to give statements that are inconsistent with their prior statements, documents, and e-mails;
  3. Get your clients to give statements that are inconsistent with the testimony or documentation of other witnesses about the pertinent events;
  4. Draw out your client’s story in a way that lacks credibility;
  5. Delineate the limits of their lack of firsthand knowledge of events;
  6. Get them to admit that they do not know the reason for their discharge or adverse employment event;
  7. Minimize their emotional distress damages;
  8. Explore ways to cut off their economic damages;
  9. Trawl your client’s background for issues that go to their


There are certain points that a competent defense attorney is going to score in your client’s deposition because of the facts and evidence in the case no matter what we do. Accept that. We took on the case knowing the weaknesses and problems. The goal in preparing your client for deposition is to make sure that defense counsel not score points that they are not entitled to through confusion, wordplay, wearing your client down, and deception. They way to avoid this is simple: PREPARE! PREPARE! PREPARE!




I view preparation of my client’s deposition as more than a review of his testimony. I view it as an opportunity to tighten up my case, in every regard. In order to prepare your client, you need to fully understand all aspects of your case.


1. Review legal claims and legal issues


Make sure that you fully understand all of the legal issues in the case because your client does not. You cannot make certain that your client’s testimony meets all of the summary judgment requisites if you do not know the issues themselves.


If you have difficult or marginal legal claims, consider withdrawing them in order to limit the scope of the defendant’s deposition of your client. One of the areas where defense counsel can score a lot of point is if some of your claims are inconsistent or overreaching. Your client may be struggling to testify in a way to keep these claims alive, and in the process, may damage their credibility or dilute the evidence of your stronger claims.


Make sure that you fully understand who the decision makers are in your clients’ case and how the adverse employment action connects to those decision makers. Focus your client on that connection. If your client’s testimony does not connect in some way to the actual decision makers, you will be in trouble at summary judgment. Another way that cases get diluted, or your client’s credibility is damaged, is if the client gives deposition testimony attributing hostile intent to a broad and unrelated group.    Keep the number of “bad guys” in the case low.


2. Make sure that you have received all discovery from defense counsel


If you believe that you have not received all of the relevant discovery prior to the deposition, get on the phone to opposing counsel. Hopefully this will not be the case, but if you do not trust counsel’s oral representations file a motion. Do not let the deposition go forward if you have any concerns that counsel has not yet provided you with complete discovery. The most infuriating way to have a deposition go badly is to have your client sandbagged by documents that you have never seen. If this happens in the deposition, and I have made a decent record of seeking the documents in advance, I will stop the deposition and review the documents. If it would be potentially damaging to allow my client to be questioned on these new materials, I instruct him not to answer and tell my adversary to take it up with the court.

3.  Review every document in you file


Do not just hand the documents to your client and expect them to review them and understand their relevance. You understand the relevance of all of the materials. You need to review and understand the significance of each document to the case. Another area where defense counsel can score unearned points is if the client gives his own interpretation of the significance document, which can be very different from the actual significance of the document to the case.


A good example of this would be when a client focuses on something that has occurred in the workplace that they perceive as unfair or egregious, but in actually has nothing to do with the claims. If the client is drawn in to testifying that it is a discriminatory act, or relevant to the adverse employment decision, when it has nothing to do with either, it will become fodder at trial to discredit them.


4.  Be familiar with content of witness statements and earlier depositions


A critical aspect of deposition preparation is not just reviewing your clients statements, but statements of all witnesses. Before your client gets deposed, you need to know and understand how the testimony of all of the other witnesses corroborates and contradicts your client. You will need to work through the contradictory testimony with your client, and resolve the contradictions if possible. Many apparently contradictory statements can be resolved by carefully going through the context and circumstances of the witnesses. A seasoned defense attorney will attempt to develop contradictory testimony between your client and as many other witnesses as possible. The more credibility battles your client faces, the more difficult your case will be.


If there is corroborative testimony, you should make sure that you’re clients testimony complements it. Again, a prepared defense attorney can turn small inconsistencies between your client’s testimony and other witnesses into gaping holes, unless you have prepared the client.


5. Know the major themes of your case


By this point of the litigation, you should have a decent idea of the major themes of your case. This will lead you to prepare your client in areas that are not directly relevant to the issues, but advance your themes. If your case is an age discrimination case, and your client is a long term employee with a strong record, prepare your client to be ready to expound on his lengthy and positive work record, his passion for his job, and his loyalty to his employer.


If your case is a sex harassment case, and your theory is that the harasser was protected because he is a heavy revenue generator for the company, you want to prepare your client not only on the details of the harassment, but also such details as her observations of how the harasser’s success was celebrated by others, resistance and opposition to filing the claims from fellow workers, and self-aggrandizement by the harasser.

6.  Know your client


 By the time you sit down to prepare your client for deposition, you should have a good sense of them. Understanding your client will help you prepare them for deposition, and help set your own expectations for the deposition. You are not going to change your client’s character during several hours of preparation for deposition, so you need to be realistic.


$                  Is your client someone who is truthful or is your client someone more likely to be more “flexible” if they perceive that stretching things may be helpful to their case (my clients who are former CEOs, police officers, salespersons, and surgeons generally fall into this category)?


A client who is very honest may need to be coached to on how to testify honestly yet in a manner that puts things in the most favorable light. For example, these clients may need to be educated in the relationship of their indirect discrimination evidence to the hostile and unfair conduct, so that they are comfortable testifying that the negative conduct they endured was related to their discrimination claims.

In contrast, clients who exaggerate or fill in the blanks need to be pushed very hard to understand that they may not be smarter than the lawyer deposing them, and that there may be evidence that they do not know about that contradicts their testimony. Smart clients who tend to push the truth envelope in their testimony may be very potent witnesses, but they are the ones who can self-destruct during their depositions (and subsequently blame you for it). These are clients who you should not defer to in preparation, no matter how much confidence they project. If you client tells you prior to the deposition “don’t worry, I have done a lot of public speaking before,” take it as a red flag.


$         Is your detail oriented or do they paint in broad strokes?


Clients who are detail oriented are terrific, because you can be confident that they will review the materials and be careful of testifying with precision. The problem with them is that they are often boring witnesses at trial and their need to go to great lengths to explain themselves. They often reveal too much at their depositions, and the depositions can take forever. A defense attorney can learn a great deal from these types of witnesses, by just asking lots of questions and getting them to expound. For example, unlike many witnesses who will answer that “they do not recall” when asked about un-privileged conversations about the case with friends and family, they are the ones who will testify in detail about those conversations (leading to more depositions of those friends and family). These clients need to be coached to trim down there responses and just to answer the questions as simply as possible. You need to act as a filter and narrow their focus during the deposition to those events that are directly relevant to the claims.


Clients who tend to testify in sweeping generalities will be answering “I don’t know” or “I don’t recall,” or worse, guessing at the answers to a lot of specific questions that you would like them to answer a bit more positively. Prep these clients in a way that they understand: go through the case with them from a “bird’s eye view,” beginning to end, and hammer into them the essential bullet points. If they get their dates wrong, and there is documentary evidence to fix it later on, it is not a significant problem. If they are not sure of exact quotes on important conversations, make sure that they know how to hedge their testimony by specifying that they are paraphrasing. Hopefully, there will be a prior document that can be used later on to get it exactly right for trial or in a summary judgment motion. Make sure that if they do not know who was present when something significant happened, that they say so; make sure they absolutely know every critical person, i.e, decision maker who was there. These clients tend to tell a good story at trial, because their manner of speech flows; your job is to make sure that story does not get eviscerated at the deposition.

$              Is your client argumentative or passive?


A contentious client is going to get drawn into unnecessary fights with counsel during a deposition. Since the defense attorney gets to ask the questions in an unregulated forum, this may not be a fair fight. There is nothing more I like when I am taking a deposition than to have a witness fight me on a question where I already know the answer. Educate your client on when to stick to their guns, and when to duck and run.


A passive client is going to be prone to make unnecessary admissions. For these types of clients you need to prepare them to stand their ground on the important issues. Push them hard during deposition preparation, so that they get used to it. Their instinct will be to avoid confrontation. Make sure that they are also sensitive to the series of seemingly sincere and friendly questioning of defense counsel that leads them into a false comfort zone and admissions.


The nature of your client may also dictate your conduct at the deposition. A truculent client will tend to get aroused and join the fight if you get combative with defense counsel, so you may want to avoid being argumentative in order to avoid to sending your client that message. In contrast, you may want to be a bit more assertive in a deposition with a passive client to keep the tension a little heightened in order to send the message to your client to remain guarded. If you see this type of client wilting under pressure, you may want to play a more “active” role in the deposition, and take more frequent breaks to prop your client up.


$              Understand your clients’ intellectual limits and level of sophistication?


Be realistic about your clients limits as a witness. You are not going to be able to prepare a high school drop-out who was sexually harassed at a Burger King to understand the nuances of Farragher, no matter how many hours of preparation you do. For these clients, make their weaknesses their strengths: their lack of sophistication makes them vulnerable and sympathetic, their lack of guile enhances their credibility. Their lack of understanding of some of the subtleties of the questioning can make them relatively impervious to cross-examination. Make sure that these types of clients tell their core story in a truthful and powerful way, make sure that they do not lie about anything else, and do not worry about too much else. Do not elevate your expectations to get more subtle testimony from them.


With more sophisticated clients, the most important thing is to make sure that they completely understand the case issues, as opposed to their own concerns. These clients will do well as long as they place the evidence in the context of the case issues, but may create problems if they get side-tracked on their own issues. Again, it is important to make sure that they focus on the nature of the specific discrimination and relate it to the decision makers, rather than focusing on the individual merits of ever single workplace issue. In addition, you want to make sure that they do not come across in the deposition sounding like a lawyer (even if they are a lawyer); they’re the victims, you are the lawyer. Remind them that you will be doing the advocating, and have them focus presenting the facts accurately.

     $             Is your client likeable?


This is something that will be an ongoing process. If your client is inherently likeable and sympathetic, that is going to come through in the deposition. Keep that client relaxed, and the most important thing to preserve that is to make sure that your client comes across as likeable.


If your client is not particularly likeable or sympathetic, use the deposition and deposition preparation as a chance to work on that. Consider videotaping your client during deposition preparations, so that you can show them what to work on. Consider videotaping the deposition itself, so that you can use the deposition tape later on to prepare your client for trial (or encourage your client to settle the case). Have realistic expectations. You are not going to change your client’s character, but hard work can smooth out the edges.



Preparing your client for deposition is an extraordinarily important part of the case. Its significance should not be minimized. Unless your client is going to be subjected to an IME, this is the only time in the case when your client will be subjected to an adverse examination with minimal legal and procedural protections. At trial, you direct your clients examination, and re- direct examination to focus them on the issues that are important to the case. In the deposition, the defense counsel has complete control of the focus of the questioning. Spend as much time as necessary to feel comfortable that your client is not make any fatal mistakes at the deposition.


1.Never prep your client for deposition the day before or the day of the deposition


If your client tells you something disastrous the day before or the day of the deposition, you have not time to do any investigation or exploration of the problem and either fix it, postpone the deposition, or settle the case. Leave yourself a window to do damage control if something arises during the preparation that dramatically alters your case. I have literally settled cases to avoid having my client deposed after having an “illuminating” revelation when I prepared the client. If a significant but open-ended issue comes up that needs further exploration, postpone the deposition rather than have your client to be deposed and locked in before the you fully understand the issue. As I said, your client’s deposition is not a time to explore new issues.


2. Never prep your client for deposition more than five days in advance


If the only spend significant preparation time is more than five days before the deposition, your client is going to forget most of what you told them. When you prepare your client for deposition, you will be working on some very specific answers to some critically important questions about the case. By the time that you finish preparing your client, they should have those answers down cold. They should also have specific responses to the problem areas in the case. If the preparation is done too far in advance, that will be lost.


3. Documents to Have Your Client Review on Their Own Prior to the Deposition


Attorneys differ on what to give clients to review for their deposition on their own. I do not like to give my clients “cookie cutter” deposition preparation instructions, and certainly do not view them as a substitute for going over the deposition process in person. If I were the client, I probably would not read them, and if I read them, I doubt that I would understand them. The majority of my clients have never been through litigation before, and


Rule 611 of the Federal Rules of Civil procedure require disclosure of any materials that a witness has used to refresh their recollection before or during their testimony. This rule has generally been applied to depositions. This rule has been used to compel production of attorney work product materials, such as case summaries, damage calculations, and time lines used to refresh a client’s recollection prior to the deposition. Tattletale Portable Alarm Sys., Inc. v. Calfee, Halter & Griswold, LLP, 276 F.R.D. 573, 575-76 (S.D. Ohio 2011); Calandra v. Sodexho, Inc., 3:06CV49WWE, 2007 WL 1245317 (D. Conn. 2007); In re Rivastigmine Patent Litig. (MDL No. 1661), 486 F. Supp. 2d 241, 243 (S.D.N.Y. 2007); Server Tech., Inc. v. Am. Power Conversion Corp., 3:06-CV-00698-LRH, 2011 WL 1447620 (D. Nev. 2011) Denman v. Youngstown State Univ., 2007 WL 2781351 (N.D.Ohio September 21, 2007)Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 183 F.R.D. 458 (D.Md.1998) Bank Hapoalim, B.M. V American Home Assurance Co., 92 Civ. 3561, 1994 WL 119575 (S.D.N.Y. April 6, 1994) Parry v. Highlight Indus., Inc., 125 E.R.D. 449, 452 (W.D.Mich.1989) United States v. 22.80 Acres of Land, 107 F.R.D. 20, 25 (N.D. Cal. 1985); In re Comair Air Disaster Litig., 100 F.R.D. 350, 353 (E.D. Ky. 1983); Wheeling-Pittsburgh Steel Corp. v. Underwriters Laboratories, Inc., 81 F.R.D. 8, 10 (N.D.Ill.1978). Similar requirements exist in state courts.  You should familiarize the specific rule applicable in your jurisdiction. You need to be aware that if your client reviews materials to refresh their recollection, even materials prepared by you, they may have to be disclosed.


a. Materials to be provided to client to review in Every Case

  1. The complaint
  2. Any administrative complaint filed by the grievance related to the claims;
  3. Any Affidavit That has been disclosed;
  4. Client’s Verified Responses to Interrogatories
  5. Any non-privileged statement of the client, whether it is recorded, signed or summarized by a third party;


The client should be directed to familiarize themselves with all of his prior statements, as well as his prior complaints.

a.  Materials Never to be Reviewed by the Client on their own

  1. The contents of their own psychological records;
  2. The contents of any psychological IME or other expert psychological report relating to your client;
  3. Cases, law review articles,


b.Documents reviewed with client during prep meeting


Generally, all discovery materials have been forwarded to the client as they come in. Prior to the deposition, my practice is to narrow the number to a few critical documents that I give the client to review on their own.  I do this so as not to overwhelm the client and to avoid them getting lost in the details.


All relevant documents that are ambiguous, subject to misinterpretation, or have legal significance should be reviewed directly with the client during the preparation meeting, rather than being left to the client to review on their own. Our clients do not generally understand their significance. Defense attorneys can effectively use documents to lead clients down the wrong path during a deposition. They can lead the client into an interpretation of terms in the document that are inconsistent with your claims. They can get the client to lock in to a favorable (to them) interpretation of an ambiguous document. They can get the client to testify in a way that minimized the impact of a document that has important legal significance.


It is critically important to go through all documents carefully and make sure that the client reads the documents in a way that is consistent with your claims, understands the more favorable nuances, and does not cut off the most favorable uses of them at trial.

e.  E-mail trails


E-mails can be a fantastic source of real-time information for your case, but also present pitfalls for your client during their deposition. E-discovery trails can often be difficult to follow because of the strands and responses going and coming from to multi-parties. In a deposition, defense counsel can take advantage of this to create problems with your time line. In addition,

they present fertile ground to create inconsistencies with your client’s testimony. Most of us do not recall what we have said in our prior e-mails with specificity, and because we are often sending them without a lot of forethought, e-mails often are not carefully crafted.


Before your client comes in to prepare for the deposition, make sure that you have figured out the chronology of the various e-mail trails involving your client, and that you understand the significance of them to the issues in your case. For the significant e-mail trails, make sure that your client thoroughly understands the context, the timing, and the intended meaning of their e-mail statement. Clients can easily be misled when only shown portions of an e-mail trail during a deposition.

4.  Identify the three “must have” statements your client must get exactly right in     the deposition


Most client mistakes at a deposition are correctable, but there are certain statements that your client must get right in order to avoid losing or fatally damaging the case. These areas can include the timing of certain events, reliance issues, and important statements made by others. Hopefully there are not too many of those, but those are the areas of testimony that you should focus your preparation to make sure your client gets them right. These are the specific answers that you should go over and over, asking the questions in a number of ways, to make sure that your client gets them right.When my client comes in on the morning of the deposition, for final review just prior to the deposition, these are the only areas that I focus on.Avoid identifying too many areas that are critical, because most clients will have a limited capacity to memorize appropriate responses and respond under pressure.


5.  Prepare Clients Who May Have Negative Background Issues


Clients with criminal histories, pre-existing psychological issues, and prior employment litigation need to be carefully prepared for depositions. Defense counsel love to tease out the explanations and justification for potentially negative background issues. This can be fruitful ground for further investigation of your client and further discovery.


Counsel should be aware of the law in your jurisdiction and be ready to step in if the questioning is protected by some privilege, or sealed arrests. The deposition is not the time to fight with the defense counsel, or to explain or justify the facts. Figure out how to get the client to admit what needs to be admitted, and save any story or explanation for direct examination on trial.



6. Prepare client on chronology/time line issues


The chronology of events can be critical in employment cases. They can also be very difficult for your client to keep straight in a deposition. If there are documents to tie the time line to specific dates and times, review those carefully with the client, and prepare your client to qualify their answer if they are unsure of the timing. Do not depend on your client to memorize and understand the timing of events; You need to familiarize yourself with it, filter out irrelevant events that your client mistakenly may be focused on, and get them to focus on the critical sequence.


If the case relies on your client’s recollection of timing and sequence , then this becomes one of the critical issue that your client needs to be prepared to get right.


7.Get Your Client to Expound on Emotional Distress Damages


Most clients are hesitant about describing the impact of emotional trauma from a workplace event. Client’s tend to give generalized testimony, rather than specific examples.. If your emotional distress claim is a significant component of your damages, this is the one area in the deposition where you should get your client to elaborate. Mine your clients medical records for their description of specific symptoms, and incidents, and talk to your clients friends and family. Have the client review a hedonic damages chart (attached) to assist them in describing their symptoms with more specificity.  The importance of getting your client to testify in as much detail during the deposition, is to make sure that the absence of detail is not later used to impeach as a recent fabrication. When your client cannot remember any more details or symptoms, they should testify that is all they can remember at this time, to leave the door open if they subsequently recall other details.

8.Issues With Fragile Clients


If your client is emotionally or physically fragile, it is necessary to take particular care that the experience does not cause them further damage. If there are certain employees whose presence may be difficult for your client, get a protective order to exclude them. Speak to your clients treating physicians and therapists to make sure that they are comfortable about your clients ability to go through a deposition at that time. Never hesitate to postpone a deposition, if you have any concerns about your clients mental or physical health. Your duty to your client trumps any scheduling order or obligation to defense counsel.


If the client goes through the deposition, consider videotaping it. Videotape tends to curve the excesses of most lawyers in a deposition. In addition, make sure that your client knows that it is alright to get emotional in the deposition, because that is part of the case. Take frequent breaks, and stop the deposition early if it becomes necessary.



As most of you know, there is little that can be done during a deposition. The work for a successful deposition of your client is really done in preparation.


During a deposition, I may have certain cues during objections to coach my clients. “Asked and answered” is how I tell my client that they have answered the question adequately and do not need to add anything more. “Asked and answered, you can answer if you have anything further to add” is when the client does not get it the first time. I some times tell the client that if I stand up and stretch, or touch my head, that means that they are talking too much. Most of the time, the client misses this cue.


I will engage in speaking objections if the questions that defense counsel are asking are unfair questions intended to trick the client into an answer. If it is clear that my client has made a silly mistake, one that is obvious from looking at the contemporaneous documents, and not related to credibility, such as stating the wrong date, when the there is no dispute about the date, and defense counsel knowing leads the client down that path, I might interject. If, on the other hand, defense counsel is asking fair questions and the client simply is not answering the questions, they are doing their job and I stay out of it.


If the defense counsel is overly aggressive, my objections may become more vocal, but that may also increase the stress level of the room and be counterproductive. Take lots of breaks.


If you know the attorney is aggressive in advance, videotape the deposition.


I rarely question my clients at their deposition. It is very difficult to fix bad answers on the fly, so it generally does not work. The only time that I will do so is if the client has answered one the three “must have” statements wrong, and I am concerned that it cannot be fixed by a subsequent affidavit.



Preventing your adversary from obtaining advantages at your clients deposition takes thorough preparation by the attorney. You cannot delegate responsibility of understanding the significance of the client’s testimony to your client. It is your job to help them connect the dots. If you’re not surprised by any of the testimony at your client’s deposition, then your preparation was good, and your deposition was a success.