DTCI: The art of witness deposition prep, according to Sun Tzu

“The Art of War,” a 2,000-year-old analysis of battle preparation and strategy, remains perhaps the most widely read book on strategy in the world. Sun Tzu’s theories have been successfully applied in business, politics and sports, and they are no less useful and effective in the “battlefield” of litigation. According to Sun Tzu:

“Military action is important to the nation — it is the ground of death and life, the path of survival and destruction, so it is imperative to examine it.”

So, too, is your client’s deposition frequently “the path of survival and destruction” in litigation. I offer a brief application of Sun Tzu’s wisdom to witness prep for deposition. Sun Tzu’s tactics seek first to avoid strategic difficulties if possible and to respond effectively when difficulties are encountered. Their application will prepare your witnesses so they avoid leaving you with problems with their testimony, which you will struggle (often fruitlessly) to effectively address at trial .

“The victories of good warriors … are not flukes because they position themselves where they will surely win, prevailing over those who have already lost.”

There is no point at which your clients are more “on their own” than in deposition, and you cannot count on luck. It is preparation that will enable your clients to prevail. Gone are the days of drilling your clients to confine themselves to “yes,” “no” and “I don’t know.” While those answers remain viable and useful, you must understand and explain when those answers are no longer effective, or the battle will be lost.

“[I]t is said that if you know others and know yourself, you will not be imperiled in a hundred battles; if you do not know others but know yourself, you win one and lose one; if you do not know others and do not know yourself, you will be imperiled in every single battle.”

It is foolish to rely too heavily upon either your own strengths or your opponent’s weaknesses. Your assessments of both must be honest and thorough. The only way that you can make your witness invincible is by thoroughly understanding the opponent’s claim, theory and potential path to victory. Your client must have the same understanding.

“[S]killful warriors are able to be invincible, but they cannot cause opponents to be vulnerable.”

Often, the most critical point in preparing your witnesses is to persuade them that their depositions are not the venue in which to go on offense. As we have all heard, “You cannot win your case in your deposition, but you can surely lose it.” The only objective of your clients should be defending (like a goalie) the questions that they are asked by answering in their own words (not the words of the opponent) as effectively and briefly as possible.

“Therefore good warriors cause others to come to them, and do not go to others.”

Being prepared to answer challenging, important questions also means being prepared to wait for those questions to be asked. This avoids the witness sounding defensive, which is particularly important in a videotaped deposition. It may also avoid having them answer questions unnecessarily. We may have our witnesses prepared for issues that our opponent has overlooked. Offering an answer prematurely will —unfortunately — assure that issue is examined in depth.

“When you do battle, even if you are winning, if you continue for a long time it will dull your forces and blunt your edge.”

Limiting witness fatigue is important. There is nothing in Indiana procedure that limits the duration of a deposition, at least not without court intervention. But even well-prepared, effective witnesses cannot testify for an indefinite period without losing their edge. There are lawyers who have made “wearing down” the witness a staple of their deposition technique — it is in the last hour that they plan to “score their points.” Conversely, your clients are likely unaccustomed to sitting for long periods or answering repeated questions where they must listen with the focus and intensity required in a deposition conducted by a skilled opponent. Physicians and nurses, for example, are accustomed to frequently changing patients. So, you must both prepare your witnesses for this tactic and be prepared to intervene if your witnesses become fatigued.

In preparation, expose your witnesses to lengthy mock examination. Make sure they know to request a break if they feel sluggish. Make sure you take regular breaks during the deposition, even if only for a few minutes. Your clients must know that when you ask for a break, they must get up and walk around. Brief mental breaks are proven to help witnesses remain focused. (Ariga, A, Lleras, A (2011, Mar) “Brief and rare mental ‘breaks’ keep you focused: deactivation and reactivation of task goals preempt vigilance decrements.” Retrieved from https://www.ncbi.nlm.nih.gov/pubmed/21211793.) Finally, as much as I prefer not to continue my client’s deposition into a second day, it may be a better option than to continue after your client’s “edge is blunted [and] strength is exhausted.” Often, the notice states the deposition will “continue from day to day until completed,” so they may object, but they considered the same possibility. The alternative is that your opponent will take advantage of witness fatigue.•

• Mr. Voelker is a partner in the Hammond office of Eichhorn & Eichhorn and is a member of the DTCI Board of Directors. Opinions expressed are those of the author.