To the extent one’s client (“C”) is to  testify at a deposition, s/he needs some suggestions, lessons, instructions, training, etc.–the level depending on the nature of C. There are lots of things to emphasize. Here’s one.

L: “Suppose, my dear C, that you are ask a question like this one: ‘Do you you agree me with me that p?’ What should you say? How should you answer?”

C: “Shouldn’t I say “yes,” if I think p is true, or no, if I think its not?” I wonder if this is true.

The real question should be one of two possibilities: (1)  whether p is true or not, or (2) whether C believes or does not believe p.  Whether C agrees with opposing counsel is irrelevant.  Moreover, it is probably not knowable by C, since he does not have access to the mental states of opposing counsel.

Perhaps C should consider answering the question “I don’t know.”  The trouble with this correct answer to the irrelevant question is that it’s a subtle matter, and someone might be confused about the meaning of “I don’t know” uttered in this situation.

Another approach is for C to say, “I don’t understand that particular question.” The depositioner will then ask, “What do you not understand?” The witnessing C might then say, “I can’t tell whether you are actually asking me something about the correspondence of our mental states as to p or whether you’re asking me about what I believe with respect to p.”

The depositioner will back away immediately and as the relevant question cleanly. This is true even is s/he scowls contemptuously or laughs sneering.

I like the approach even though looks over-technical. First, it keeps the record correct. Second, it lets the depositioner know that C will not be pushed around or subtly dominated. It makes C more in control.  After all, the deposition of of C, so it’s his/her deposition, and not at all  the deposition of the depositioner.

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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