Trial Magazine

Giving a deposition or testifying at trial can be daunting for plaintiffs in personal injury cases. They often carry the weight of trauma, unanswered questions, and the pressure of testifying about their experience. For plaintiff attorneys—particularly in complex cases—thorough preparation is crucial.

Client Ground Rules

Cross-examination preparation must be strategic and deliberate. Our firm follows a consistent set of rules that guides our clients through this process. These principles help ensure clarity, preserve credibility, and protect the strength of the case.

1. Always tell the truth. The single most important rule: Tell the truth. We emphasize this from the first meeting through every stage of preparation. Credibility is the foundation of any successful plaintiff’s case. Once it’s lost, it can’t be recovered.

2. Less is more. Cross-examination isn’t usually the time for a plaintiff to “win” their case. In depositions, the defense attorney’s job is to gather information. Plaintiffs—especially those who have suffered serious injuries—often feel tempted to explain, justify, or share background they believe is important. But unprompted elaboration can open the door to damaging lines of questioning or inadvertent admissions.

The same principle applies at trial. The less your client says during cross, the less material the defense has to challenge—and the less risk there is of contradicting prior deposition testimony.

Clients must understand: If the defense attorney does not ask the right question, they shouldn’t volunteer unrelated information.

3. Answer the question asked. Many clients get into trouble by not listening closely to the question that is asked and offering answers that go beyond the question. Plaintiffs often want to be helpful, but that instinct can lead to offering unhelpful information.

Defense attorneys are sometimes underprepared. They may ask vague or incomplete questions. It is not the client’s job to fix a bad question or complete the defense’s record. We teach our clients to slow down, listen carefully, and answer only the exact question asked—nothing more, nothing less.

This strategy limits unnecessary disclosures and keeps the scope of the deposition narrow. When clients listen and answer precisely, they reduce the risk of arming the defense with information they wouldn’t otherwise uncover.

4. Don’t guess. Plaintiffs often feel nervous and want to appear knowledgeable. They may fear that saying “I don’t know” looks bad. The opposite is true. Guessing can create inconsistencies, undermine credibility, or introduce inaccurate facts—all of which can damage the case.

If a client doesn’t know the answer, the best response is a simple: “I don’t know.” If the question is unclear, they should feel empowered to ask for clarification. We remind clients that guessing is worse than not knowing.

Beyond the Basics

In addition to teaching your client the ground rules, you should take some extra steps to ensure that their cross-examination is as helpful to their case as possible.

1. I-just-can’t-get-over issues. Prepare for the case’s I-just-can’t-get-over issues—those facts that jurors “just couldn’t get over” and that typically drive their decisions. Our firm uses the case framing method to identify the “Case Frames” or fundamental truths that give meaning to the case and will resonate universally with jurors.

Within this framework, we identify the case’s strongest and most challenging I-just-can’t-get-over issues. When preparing your client for cross-examination, you and your client should know these issues.

Clients must be ready to highlight the I-just-can’t-get-over issues that are good for them, and respond effectively to the I-just-can’t-get-over issues that are bad for them. For example, in a loss-of-consortium case, a widow who lost their spouse of 50 years should be prepared to convey the loneliness they have experienced ever since. Generally, people relate more to the loss of something than the opportunity to gain something. Clients often struggle to articulate their emotions amid such profound grief. Part of your job is helping them express those truths.

On the flip side, prepare clients to respond to negative I-just-can’t-get-over issues. For example, if your client is an alcoholic or turned to alcohol to cope with trauma, ensure that they are prepared to deal with questions related to alcohol dependence.

The alcohol might be a coping mechanism to cover the pain they are experiencing both physically and emotionally from the incident. Focusing on these issues may help explain the damages your client has suffered as a result of the defendant’s negligence. Emphasize the important rules: Tell the truth and answer only the question that is asked.

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Understand your client’s personality, communication style, and emotional triggers.

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2. Learn about your client. Understand your client’s personality, communication style, and emotional triggers. Every person has strengths and weaknesses that may help or hurt them in cross.

An anxious client may need a step-by-step walk-through of the testimony process—the logistics of the day, room layout, and additional mock questions—so they know what to expect. A client quick to anger may need extra preparation to handle issues that are likely to set off their temper.

Cross-examination preparation should be more nuanced and more grueling than the actual testimony. The goal is for your client to leave cross feeling like the questioning was not as bad as they expected.

An important part of learning who your client is involves determining how they communicate and adjusting your communication strategy to ensure their understanding. To test your client’s understanding, ask them to repeat an explanation back to you that you have already given to them, in their own words. Or give them a sample line of questioning to see if they answer accurately.

3. Prepare with documents. Prepare your client for key documents in the case—including documents produced through discovery and those that are publicly available. This may include answers to interrogatories, responses to requests for admission, responses to requests for production, and their own deposition. Make sure your client knows what they have previously stated under oath.

Also prepare the client for when they are confronted with a document—or a quote from a document—that they have never seen before. In that circumstance, they should be ready to ask to see the full document and for time to review it before answering any questions. Remind them of the ground rules: Do not answer a question you do not understand. And understanding the document they are being confronted with is an essential part of understanding the question asked.

Defense counsel will likely look for data about your client by searching online, including social media, court dockets, news articles, and other public records. You should also search these sources for any publicly available information on your client. If you find documentation you think the defense will attempt to use against your client, show it to the client and talk through how they are going to address it.

For example, if the client posted a politically charged message on Facebook, prepare them to be questioned on that topic. If a client’s public statements or opinions could clash with potential jurors’ beliefs, prepare them to navigate that without alienating the jury. Clients don’t have to change their views but should avoid unnecessary distractions that could harm their credibility.

4. Word choice matters. Prepare your client for important legalese that they must use. This may include ensuring that they are prepared to use specific language or to testify to a certain subject matter in order for the testimony to be relevant or powerful.

Clients often use conversational language in their answers. For example, a client might say, “Well, just the other day, Dr. Smith told me that he was reviewing the CT scan of my back and thought it looked fine.” Phrases like “just the other day” can be interpreted in different ways. If the date Dr. Smith told the client he was reviewing the CT scan is important to the case, make sure the client understands that they need to provide a specific date.

It’s also important to prepare your client to use words or phrases consistent with your trial preparation or trial strategy and I-just-can’t-get-over issues. For example, if you have a case against a trucking corporation and a truck driver, you want to emphasize the negligence of the corporate defendant.

We will often refer to the truck driver as “ABC Corporation’s truck driver.” This helps put an emphasis on the corporate defendant. It is helpful for the plaintiff to use this language as well, and preparation on these topics is key.

5. Don’t overlook logistics. Ensure that your client knows the logistics of deposition and trial. You may want to show the client examples of past depositions if you can do so without offending any confidentiality agreements.

Prepare them for what to bring and what not to bring. For instance, we often tell our clients not to bring notes to the deposition. However, if there is a critical part of the case that the client has a hard time remembering, it may make sense for the client to bring notes to remind them of the facts.

If a deposition is occurring remotely and the client will be at home, for example, make sure they have an isolated room they can use with a reliable internet connection. For trial, we will bring the witness to the courtroom when no one is present and allow them to sit in the witness box. This can help them feel more comfortable when they are testifying at trial.

There are too many instances when plaintiff attorneys miss these basic preparations and the client experiences an embarrassing situation.

Ethical Responsibilities

It is always critical that you understand your ethical responsibilities relating to anything you do in your clients’ cases. It is not uncommon to have ethical issues arise during preparation of witnesses and clients for cross-examination at deposition or trial. Be sure to consult the local ethical rules in your jurisdiction.

Further, although the language is rather broad and constitutes more of an overview, the ABA recently published ABA Formal Opinion 508, which relates to the ethical responsibilities attorneys have in preparing clients and witnesses.¹

Formal Opinion 508 explains that preparing a witness is not just acceptable, it is essential and expected.² Under Model Rule 1.1, which addresses competence, a lawyer who fails to adequately prepare a witness may actually violate their ethical obligations.³

Formal opinions of the ABA are not binding, however they are persuasive, and Model Rule 1.1 has been adopted in at least 36 jurisdictions as of July 12, 2021.⁴ The ABA explicitly recognizes that proper witness preparation includes a wide range of permissible activities that go beyond merely reviewing testimony.

For example, it is both ethically permissible and, in fact, encouraged to

• remind the witness that they will be under oath
• emphasize the importance of telling the truth, including clarifying that “I don’t recall” can be a completely truthful answer
• explain the nature and strategy of the testimonial process
• review documents or evidence to refresh recollection
• explore a witness’s memory and expected testimony
• identify possible lines of cross-examination
• discuss appropriate attire, demeanor, and courtroom decorum.⁵

The ABA also details the preparation attorneys cannot engage in without potentially violating their ethical responsibilities. We operate in an era of remote depositions, remote trial testimony, and digital trial technology, where examples of unethical coaching have occurred off camera.

The ABA guidance emphasizes the need to comply with the rules of professional conduct and the rules in both remote or in-person depositions.⁶ Highlighting the relative ease of off-camera witness coaching during remote proceedings, the guidance cites several examples of attorneys who have been sanctioned for such conduct. These include an attorney sanctioned for texting a witness how to respond to questions during a remote deposition and an attorney suspended for using the GoTo Meeting chat feature to instruct a client how to answer during trial.

Effective and ethical witness preparation is a balancing act. We must put our client in the best position to win their case, but we do so with a deep respect for the integrity of the process.

Teach your client the ground rules of cross-examination, prepare them for confrontation, reinforce their understanding of key issues and documents, and ensure they are ready to testify using the necessary language to convey your I-just-can’t-get-over issues at trial. By taking these steps, you’ll ensure the best outcome for your client’s case.

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Zachary Mandell is a partner with Mandell, Boisclair & Mandell in Providence, R.I. He can be reached at zmandell@mbmjustice.com. Michael McCaffrey and Shannon Griffin are attorneys with the firm and can be reached at mmccaffrey@mbmjustice.com and sgriffin@mbmjustice.com, respectively.

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Notes

1. ABA Standing Comm. on Ethics & Pro. Resp., Formal Op. 508 (2023).
2. Id.
3. Model Rules of Pro. Conduct r. 1.1 (Am. Bar Ass’n 2012).
4. ABA CPR Policy Implementation Comm., Variations of the ABA Model Rules of Professional Conduct Rule 1.1 Competence, ABA Jurisdictional Rules Comparison Charts (last updated July 12, 2021), www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc-1-1.pdf.
5. ABA Standing Comm. on Ethics & Pro. Resp., Formal Op. 508.
6. Id.