During the deposition phase of discovery, lawyers usually have to take and defend depositions. But even though a lawyer might defend as many depositions as she takes, the typical lawyer will spend a disproportionate amount of time preparing to take the other side’s deposition. Though it makes sense to spend more time preparing for depositions that you take, a failure to adequately prepare your witnesses for their deposition can have catastrophic consequences for your case. Make sure that you spend more than 15 minutes with your witness before the deposition. In fact, a proper and thorough prep may take hours or even days depending on the case and the witness.
I’m going to cover tips for adequately preparing your witnesses for your case. The subject of preparing witnesses for a deposition is too vast for a single post, so I’m breaking it up into two. The first covers general preparation tips that apply to every witness while the second discusses tips that you'll want to employ for specific types of witnesses.
You can’t win a case in a deposition
The single most important rule for a witness to remember is that he or she can’t win the case with their deposition. The deposition isn’t given in front of a jury, and the opposing lawyer will only pick out the bits and pieces of the deposition transcript that are helpful to her case. While you may be able to use your witness’s responses to help your cause at summary judgment or in other motions, you can generally get the testimony you need in the form of an affidavit. It’s vital for the witness to understand that (in general) they can only hurt your case in a deposition, not help it. If a witness understands this fact, then usually he will be more circumspect with his answers.
Review how the opposing lawyer might use the deposition in motions or at trial
A corollary to point #1 is that deposition transcripts are used to prove the opposing party’s theory of the case or to impeach the witness. The witness needs to understand how he can potentially torpedo your case, his credibility, or both. Most of the time witnesses don’t really understand the implication of the testimony that they’ve given. Make sure that they understand that, if the case goes to trial, their answers at trial will be compared to their deposition testimony with great scrutiny. Inconsistencies can hurt credibility. Verbose, rambling responses potentially can give the opposing counsel a great nugget in a motion brief. Once your witness understands how his answers can be used against him, it should help control answers that make you want to bury your head in your hands.
Don’t assume, speculate, or guess
It doesn’t help. Lawyers know this but laypeople don’t, or they forget. If you watch CNN, FOX, other any other news network during a major breaking news event then you’ll hear more conjecture than fact. While this can fit into normal daily conversations, conjecture doesn’t help in a deposition. I suggest you explain to the witness a simple example as to why conjecture isn’t helpful. I just tell the witness that if they guess wrong then they lose credibility since they’re shown to be wrong. If they guess correctly then it doesn’t help since the other side will say, “it was only a guess” and minimize the beneficial effect of the witness’s statement.
Take your time
Often the witness goes too fast. The main issue is that they blurt something out before you have had a chance to object or before they have had time to carefully consider their answer. Encourage them to pause after each question before responding.
Go over sample exhibits. Ask questions that you expect opposing counsel to ask the witness. Practice having the witness pause between the end of the question and the beginning of his answer. Practice how you want the witness to review any documents.
Show a sample deposition on YouTube
I’ve referred to this idea in past other posts, but I think it’s very instructive for deponents who may not have seen a deposition. Show them videos of good and bad witnesses. You can make a playlist, show a snippet, and cover what the witness did right or wrong. In 20 minutes, this interactive session can teach the witness a lot more and prepare them for what to expect realistically.
These are good teaching videos:
- To show how a deposition starts and general questions.
- Why “forgetting” everything could be bad. (Hint: It looks bad to anyone watching)
- How agreeing with everything that the deposing lawyer says could be bad.
Remember the privilege rules (but don’t let that prevent you from prepping the witness)
If the witness is your client, then your preparation is covered by the attorney-client privilege. But if the witness is merely friendly and not your client then your communications are not privileged. Many lawyers are keenly aware that their discussions with witnesses aren’t privileged so they spend almost no time preparing friendly witnesses. I think that’s a mistake. It certainly can look bad if you spend days before the witness’s deposition reviewing documents and planning answers. But if you cover the elements in this post, including the video examples with the witness, then you’ll likely get better answers for your side during the deposition. If the opposing lawyer teases out that you’ve covered the seven tips in this blog, it’s not that big of a deal. You didn’t coach them on any facts or “how” to answer questions. You simply prepared them on what to expect when they give a deposition. People practice weddings for hours even though it usually boils down to simple walk down the aisle, stand, repeat some basic phrases, and walk out. So if you practice that once-in-a-lifetime event, then it shouldn’t be a big deal to spend an hour practicing for a high stress event like a deposition.