Preparing the Personal Injury Client for Testifying at Deposition (or Trial)

When a client retains an attorney, the client gives up his voice.  Virtually every statement the client might make is filtered through or controlled by counsel.  There are only two times that the client regains his voice and will speak for himself. At deposition and a trial, the client speaks out. The importance of those words are not lost on any of us who serve our clients.

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 did they say it. It comes down to those two things.  What did the client say?  How well did the client conduct herself?  While the facts are important, you can find ways to show the facts by the testimony of other witnesses or medical records, and so on.  What how the client appears and presents himself can only come from the client.  Where they disciplined?  Could you control your client?  Was the person out of control, or could opposing counsel ask questions that would jolt the client out of his preparations and appearance of self-control?  Could the case turn and the value of the case be adversely affected if the witness did not present well?

The research helped me locate some resources.  I synthesized the best of the information and put it into a single page, but I cannot claim full credit for the result, 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.)

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.  Think about how our clients are agitated by simply having had a complaint filed for them.  A deposition is a huge event for them.  And the trial is even more dramatic and stressful as an event for the client.

Added to the stress of litigation is 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 wants to talk, and talk more.  And to try to be their own advocate.  That is all appropriate, 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.

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 a memory of the length of therapy or the particulars of complaints of pain fades with time.  You can rely on medical records.  But if your client will offer unsolicited answers and information, or overstate the trauma, your case can be undermined, perhaps even irretrievably undermined–by the person who could 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, 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 hey, the paper is blue.  There are 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.