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Many litigators would prefer taking a deposition to defending one, and more still would prefer either option to preparing a witness for a deposition. However, there are benefits to proper and thorough deposition preparation — both for the witness and for the attorney — that many attorneys may miss. After appropriate preparation, the witness can deliver confident and accurate testimony, and the attorney can identify crucial strengths and weaknesses of the case. This brief discussion offers a few items for consideration in advance of your next deposition preparation session.
Deposition preparation should not be a reflex exercise. Simply relying on your tried-and-true deposition preparation outline with the long list of ancient commands (“Don’t guess!” “Don’t elaborate!” “Don’t volunteer!”) is wrong. All witnesses are not created equal, so your next deposition preparation session should not be the same as your last. Work on it. Prepare a preparation session outline. Doing so will make your session more efficient and effective.
To tailor your preparation session appropriately, you must understand who your witness really is. This is more than just her name and title. What are her strengths and weaknesses as a witness? Some witnesses are talkers; others are not. Some know a lot; others think they do. When preparing a witness you have never met (or even one you know from past cases), consider scheduling a preliminary, in-person meeting before the substantive preparation session. Ask broad questions about the witness’s background or questions related to her role in your case — anything, really — to determine how she responds to questioning. This will enable you to take advantage of her strengths and to guard against her weaknesses during preparation.
Remember the forest and the trees and ensure your witness understands both. As defense counsel, for example, your role is more than merely preparing a witness for a deposition in a vacuum; rather, it is to develop a strategy for defending your client’s case. Don’t lose sight of that when it comes time to prepare witnesses for their depositions. Understanding how each witness’ testimony fits within the case is the keystone for any successful preparation session. It will guide you in covering anticipated areas of questioning and in reviewing key documents and issues. Plus, when your witness understands how her testimony fits into the whole case, she can view her knowledge through that lens and often provide additional helpful information.
Consider this novel concept: trust your witness. Whether your witness is a seasoned corporate representative, an expert who has given multiple depositions or a client or company employee who has never testified, you must trust her to deliver her testimony. Too often a witness’ head is so filled with rule upon rule (We will now recite the ancient commands!) that an otherwise competent and confident person becomes an anxious reciter trying not to mess up. To avoid this problem, consider a preparation session focused on concepts and strategy rather than rules and repetition. With appropriate preparation and understanding of strategy — even basic strategy — any witness should be trusted to speak.
Finally, some rules are important for every witness to understand, but even those rules can be trumped by strategic decisions. Most lists of rules for witnesses include this famous ancient command: “Answer only the question asked.” But what if that answer gives the wrong impression? Consider the following example. Imagine a company witness in a slip and fall case is asked, “Does the company have a cleaning policy involving mopping the floors?” Now imagine the company has a policy on cleaning the floors, but it doesn’t involve mopping. If the witness answers only the question asked, the response might be “no.” However, a more strategic answer might be to (gasp!) provide more information than requested and say, “No, the cleaning policy we have doesn’t involve mopping.” The testimony is accurate, truthful and responsive even though it violates the ancient command.
If the goal of deposition preparation is to instill your witness with enough confidence to testify as well as they can, perhaps it is time to supplement your list of generic deposition rules with something of more value to the witness and the case you’re defending.•
Matthew R. King is a member of Frost Brown Todd in its Indianapolis office and a director of the Defense Trial Counsel of Indiana. Opinions expressed are those of the author.
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