Preparing the Client (and other Witnesses) for Testifying at Deposition (or Trial)

When a client retains an attorney, the client gains the voice of his attorney, but seems to lose his own voice.  Virtually every statement the client might make is filtered through or guided by counsel.  There are only two times that the client fully regains his voice and will speak alone, without a filter.  At deposition and a trial, the client speaks out. 

The importance of a client’s voice and words are not lost on any of us who serve our clients.  We don’t want our clients to be without power.  We want them to be powerful.  But most people are not trained or disciplined in the art and skill of speaking.  The greatest fear people have is public speaking.  Put the two things together, no training and speaking in a “pressure” and public setting, and there is the potential for disaster for a client and the case.

Whether or not we are afraid of what our clients say, we do have some way of helping the client be effective.  When I first considered what it took to get a client prepared to testify, and setting out a pattern to replicate into the future, I was drawn back to every status letter or memorandum I had ever drafted about a deposition I attended.  

After the introduction, my first substantive paragraph evaluated the effectiveness of the witness.  That paragraph concluded with an opinion about how the witness would appear to a jury.  It was important for me to measure what the witness said, and then, how she said it.  That was my comment on the skill/discipline of the witness.  This was about how the witness spoke.

Thereafter, my letter set out the substance of the testimony.  What were the facts as stated by the witness. This was about what the witness said.   

It comes down to those two things. What did the client say? How well did the client conduct herself?  

While the testimony on the factual issues are important, you can prove facts in other ways, such as through the testimony of other witnesses, pictures or audio or video evidence, documents (such as medical records), and so on.  But how the client appears, and presents himself can only come from the client.  Where they disciplined?  Could you control your client?  Was the person emotional, hesitant, angry, or out of control?l Sometimes, though we do not like to admit it, the appearance and look of a witness can influence perceptions about their credibility or accuracy.  

Then there are other considerations.  Could opposing counsel ask questions that would jolt the client out of his preparations and appearance of self-control?  Could the case and its value and be adversely affected if the witness did not present well?  

Research helped me locate some resources.  I synthesized the best of the information and put it into a single page, and kept it very simple.  The result of my research and training yielded the “Blue Sheet.”  (Credit goes to a friend and fellow consumer attorney, William L. Berg, of Berg Injury Lawyers, for his significant contribution and originating some of the ideas.)  See below.

Now, I spend more time preparing clients to be disciplined witnesses.  The stress for witnesses cannot be underestimated.  As attorneys, we typically feel we are not vulnerable to the stress of a deposition, but for our clients, it is entirely different. For most of my clients, the thought of being in a lawsuit gives them shivers and stress. A deposition, or trial testimony, is a huge step up in stress and drama.  

Added to the stress of litigation are the great emotional commitment the client typically has to tell his or her story and the motivation to persuade the other side of the justness of the cause.  The client typically wants to talk, and talk more.  And to try to be their own advocate.  That is all understandable, but without a firm hand training and preparing them, the results can be disastrous. Clients can be expected to say too much, volunteer, interpret what the other attorney does not understand (if they understood, the attorneys would have offered more money), or worst of all, overstate the impact of a collision, the pain endured, the damages suffered. And memories often fade, so clients tend to fill in the blanks and they then overstate or reform facts, because they perceive that will help the cause.  But it is like taking a dance class on a minefield. 

It is difficult enough fighting with insurance companies and their attorneys before a deposition.  Later, if the deposition testimony went poorly, our task is that much tougher.  

For straightforward injury cases, especially when there is no legitimate dispute about liability, the client’s comments about the event are rarely the pivot point to success.  In the same way, sometimes the testimony about treatment can have some holes, as memory of the length of therapy or the particulars of complaints of pain get blurred over time.  You can rely on the medical records.  But if your client will offer unsolicited answers and information, or overstate the trauma, your case can be undermined, perhaps even irretrievably harmed–by the person who should be the best selling point of the case.

Put into the web of a skilled defense attorney, a plaintiff can be lead along to disaster.  

Therefore, we must neither undervalue the importance of preparing our clients nor fail to take the time to prepare them.  

When I first met with prospective clients, I am imagining the conclusion–how would my case and this party witness present to a jury.  What was good, bad or somewhere in the middle?  With that end result in mind, either winning at trial, or prevailing after skilled negotiations, we must get our clients ready for testimony.  Too much is at stake for us to drop the ball.  

I mentioned the Blue Sheet (the color of the paper is blue).  It is called the Five Keys, but it is printed on blue paper.  These are the simple ideas I use as a starting point for clients, to emphasize how they testify. The ideas work for any witness.



Listen to each question carefully.  Keep your answer short, direct, and limited to what you were asked.  Do not try to help the attorney who is asking your questions. 

Remember: The deposition is not your chance to tell your story.


A pause allows me time to object.

A pause allows you time to think.


Listen and pause before answering.  Make sure you understand the question.

Ask for clarification if the question is unclear.  If you do not know what the question means or you attempt to make sense of an unclear question, ask the attorney to rephrase the question. 

Do not let the other attorney put words in your mouth.  You do not have to agree with him.  Also, do not fight with or correct the attorney asking the questions.  That is my job!


If you cannot remember the answer from your own personal knowledge, say, “I do not remember at this time.”  Do not try to “fill in.”

There is nothing wrong with saying, “I don’t know,” if you do not know or cannot remember.  The deposition is not a test of your memory.

Do not guess or speculate about an answer.


Do not be afraid to speak with me during the deposition.  It is better that we discuss your concerns and questions before you answer a question that troubles you.  You can always take a break, to either discuss something, or because you are tired.  We will not allow the deposition to become an endurance test.

Begin to prepare and guide your client the moment you take their call.  The litigation process and testimony involve communication that is stilted and artificially structure.  It is artificial compared to how we usually communicate.  However, ironically, using the suggestions of the Blue Sheet would make all of us better communicators.  And there might be fewer wars on earth if we used the suggestions.  I’ll do a follow up article on world peace, but for now, I want to most effectively play my role for my client.  I want to help my clients be the best possible contributors to the success of their cases.