Defending Your First Deposition: DOs and DON'Ts

By Emiliza P. San Diego
Holstrom, Block & Parke, APLC

Congratulations! You have been selected to defend your first deposition. Now what? Below is a non-exhaustive list of “DOs” and “DON’Ts” to help you prepare.

DO: Prepare your client for his or her deposition

Whether you are defending the deposition of a party in a complex case, or a percipient witness with limited material knowledge, you must take the time to adequately prepare your client for his or her deposition. 

Plan to spend at least one hour meeting with your client to: (1) explain the general deposition process and structure, (2) review the relevant issues and facts of the case to which he or she is anticipated to testify, and (3) ensure you have answered all of his or her questions about the process.

Make sure your client is aware of the following before the deposition:

  1. Before responding to each question, he or she needs to give you time to state your objections.
  2. He or she should not guess if the answer to a question is unknown.
  3. He or she should ATFQ (answer the freaking question) – and only the question asked.  Your client should not volunteer information and must therefore listen to the question – and ensure they understand the question – before giving an answer.
  4. He or she should not be afraid to request a break at any time during the deposition.
  5. This is not your client’s opportunity to tell his or her story. 

DON’T: Procrastinate on preparing your client for his or her deposition

Do not underestimate the amount of time it takes to adequately prepare your client for his or her deposition. You cannot wait until the day before the deposition to prepare your client, especially if this is your client’s first time being deposed or your client has been asked to produce documents at the deposition. Your client may tell you that he or she feels comfortable attending the deposition without any prior preparation; listen to your client at your own peril.

This is not your client’s opportunity to tell his or her story. Your client has one job at the deposition – to answer the question. This is often difficult for deponents to understand. For this reason, preparation is absolutely imperative. If you are finding yourself trying to course-correct your client in the middle of the deposition, it’s probably too late.

DO: Know your objections

Not all objections are appropriate at a deposition. The following objections are among those that are:

  • Privilege (i.e., attorney-client, physician-patient, privacy, Fifth Amendment, etc.) or work product;
  • Relevance;
  • Defective deposition notice;
  • Defects in the oath or affirmation administered;
  • Abusive questioning, or other misconduct by a part, counsel, or deposition officer;
  • Improper form (i.e., ambiguous, uncertain, compound, calls for narrative, calls for speculation, argumentative, leading); and
  • Calls for legal contentions or conclusions.

Note that under CCP §2025.460, failure to make an objection as to the form of a question or on the ground of privilege at the deposition waives the objections. Additionally, any objections based on error or irregularity in the deposition notice must be made in writing, specifying the defect, and served at least three calendar days before the deposition.  (See: CCP §2025.410(a).)

DON’T: Make frivolous objections

While it is important to ensure that you preserve valid objections at the deposition, making frivolous objections just for the sake of objecting does not benefit your client. Unfounded objections can be sanctionable as misuse of discovery. (See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (2019) 8:695, citing CCP §2023.010.)

Your client must still answer the question asked after you state your objection, unless the objection is based on privilege or work product. You cannot instruct your client not to answer a question for any other reason.

DO: Protect your client

Be mindful of the pace of the questioning and pay attention to your client’s and opposing counsel’s demeanor during the deposition. Don’t let your client get steamrolled by opposing counsel. Some clients will want to “power through” their deposition and get it done in one day. For some depositions, this is completely reasonable and doable. For fact-heavy depositions, cases involving complex issues, or witnesses who might have health considerations, this is likely not advisable. Make sure your client understands that opposing counsel has up to seven hours of deposition time, excluding any time for meals or breaks. Your client needs to be alert and give his or her best testimony throughout the entirety of the deposition. It is your job to ensure that nothing that is within your control prevents this from happening.

DON’T: Obstruct the deposition just for the sake of obstructing the deposition

Does this mean protecting your client at a deposition is your chance to channel your inner Harvey Specter? No! Absolutely not! California’s Attorney Guidelines of Civility and Professionalism still apply while defending your client’s deposition. 

Your client’s deposition is opposing counsel’s opportunity to gather information and evidence to prepare their case and determine any opportunities to narrow the issues at trial. However, this does not mean that opposing counsel gets to browbeat and bully your client. Don’t be afraid to stop the deposition and seek court intervention, if you’ve taken reasonable and appropriate measures to prevent opposing counsel from badgering your client.

DO: Know what CCP § 2025.550 says

For those of us in Southern California, it has been common practice for decades to stipulate around certain Code of Civil Procedure requirements regarding the deposition transcript for the sake of convenience (called the “So Cal Stip” or “standard stipulation”). One provision of the stipulation is to relieve the court reporter of his or her duty under statute, which normally requires the court reporter to retain the original transcript for a certain period of time before delivering it sealed, together with any corrections made by the deponent, to the noticing attorney. (See: CCP §2025.550.) Kern County has specifically prohibited the use of the So Cal Stip.  Whether or not other counties will follow suit is still unknown. However, it is becoming more common for court reporters to refuse to accept the stipulation, so be prepared should this occur.

DON’T: Panic if your court reporter demands compliance with CCP § 2025.550 at the end of the deposition

If opposing counsel asks if you agree to the “standard stipulations” and the court reporter states that he or she cannot accept the stipulation, even if all counsel agrees, what now? Don’t panic. This means that the court reporter will retain the original copy of the transcript during the time frame allotted for your client’s review. Once this time frame expires, the original transcript, with your client’s changes, will be delivered in a sealed envelope by the court reporter to the noticing attorney.

Final Thoughts

No article can teach you everything you need to know about defending a deposition. It all comes down to preparation. While you can’t make yourself an expert in defending depositions overnight, you can never go wrong by spending the time to prepare – or maybe even over-prepare – yourself and your client for his or her upcoming deposition.

Good luck!