Raphael F. Castro of Pond Lehocky Stern Giordano.

Cases are won and lost at depositions. Establishing a prima facie case while affirmatively advancing your client's case is the primary objective. Be aware—damaging testimony from your client may be case-ending, yet young attorneys often fail to prepare adequately. In getting ready for your next deposition, here are some important takeaways and points to remember.

Preparation Is Key

In order to be effective on direct examination, one must command the facts and prepare. Study what elements you need to prove. The controlling statute or jury instructions will be the roadmap of the entire case. They tell you who has the burden of proof, what the parties must prove, what the defenses are and whether you stand a chance of winning. 

The single most important aspect of having a successful direct examination is preparation. Often, you will be under time pressure. Sometimes, it is the first time the client has ever testified. You can allay your clients' fears by letting them know you are committed to getting the right result. Getting buy-in from your witness is a continual process throughout the preparation session.

Start With Basics

Most clients have never been deposed and have no idea what to expect. Part of building your credibility and establishing a connection with your client is to understand that this is new for them and take the time to explain the basics. Explain the room setup, the position of each person in the room and what happens when you object to a question. Let your client know the procedural history of the case. Refresh their memory about when the injury occurred, when the lawsuit was filed and the purpose of their testimony.

Direct examination questions begin with open-ended questions of who, what, why, where and how. Therefore, your questions must be simple, organized and concise. Your client must understand what you are asking them, if not, the judge or jury won't.

It is through your client that you prove your case, so make sure you know what to ask them to elicit information necessary to meet your burden. Likewise, know what the other side needs to prove and how they can use your client to undermine the case. In addition, do not call witnesses just because you can. If a witness is going to do nothing more than corroborate your client, narrow the scope of your questioning to restrict the forthcoming cross.

Focus on Theme

During preparation, it is essential to tell your client the purpose or theme of his testimony. This is the single most important aspect of preparation. The client must be aware of their role in the case, and a young litigator must reasonably expect what they will say. The client is one piece in a larger puzzle. Therefore, they must be aware of what is important. Come prepared with a list of important case themes that will constitute the overall message you want to present.

By instructing your client as to what each side is trying to accomplish and how, you enable him or her to quickly identify why the question is relevant and answer accordingly. One of the primary benefits of arming your client with the case theme is that it provides a safety net to fall back on if the client gets stuck in a tricky line of questioning. Without an understanding of the entire litigation, your client is much more likely to say something to his detriment and make a costly mistake.

Prepare Your Client

Go through the questions until the client feels comfortable responding to them, but not so much that they have memorized or scripted the answers. Make sure their body language, tone, pitch, pace, movement and gestures are forthcoming.

Tell your client to listen carefully and answer only the question that is being asked. More importantly, a client must only answer a question when he or she fully understands. If a client does not understand the wording of a question, he or she must ask the attorney to rephrase it in order to comprehend the meaning fully before answering. If they answer without understanding the question, it will be difficult for them to claim ignorance should they later change their story. Tell them not to guess about an answer. They should understand that it is perfectly fine to say, "I don't know" or "I don't remember."

Emphasize to your clients that they cannot ask the attorneys questions. If possible, also advise them that proper attire is strongly recommended, especially if a judge or jury will view a video of the testimony.

The deposition should not be the forum where your client sees documents for the first time. If you have some of their medical records available, review them with your clients. This will assist in refreshing their memories concerning what doctors they treated with and when that treatment took place.

The last thing I often tell clients is try to relax. We will ensure that all important questions relevant to their case are asked. All these instructions are very simple but are often overlooked.

Be an Active Listener

Just because you rehearsed the questions, and the client answered them during preparation, does not always mean they will respond the same way during a deposition. Listen to the answers, and do not become too attached to your outline. Actively pay attention to the actual responses given.

For example, if a client tells you on direct only that she suffered a head injury from a motor vehicle accident, keep peeling off the layers: Did any part of your body hit the vehicle? How fast were you traveling? Was it daytime when the accident happened? Other than your head, what other injuries did you sustain? Were your airbags deployed? Who else was present? How did you arrive to the hospital? These are the type of questions that will add color to a more vivid painting.

Wait a full second before asking another question, even the most basic ones. This allows the client to control the pace. This also allows the court reporter to type down everything that is said. After the fact finder, the court reporter is arguably the second-most important person. That perfect direct you executed didn't happen unless everything was typed down. Having a clear record during depositions allows judges to read exactly what happened and allows losers of the battle at trial to win the war at the appellate level.

Get Buy In

Tell every client they are their own expert in their case. The fact finder only wants to know the truth under oath. Let your client know that truth is powerful and easy to remember because it happened.

The overwhelming amount of cases at the trial level are decided on credibility. Witnesses must not only tell the truth, but also must appear to be honest. This gives us an opportunity as lawyers to facilitate the perception that the witness' account is truthful.

You can't change facts. Sometimes, your most important job is to uncover all the facts, good and bad, and advise the client of the possible outcome. Project confidence and a mastery of the entire case and the client's role within it. Follow these steps and your next client will be impressed by the end of the deposition.

Raphael F. Castro, an associate at Pond Lehocky Stern Giordano, is a workers' compensation attorney. He earned his law degree from Widener University School of Law, graduating in 2014.