I continue to be amazed at the number of lawyers who fail to properly prepare their witnesses to give a deposition. Over the last 20 years, I have frequently seen large settlements generated in otherwise defensible cases because a lawyer failed to properly prepare his corporate witness to give a deposition. No other aspect of the defense of a lawsuit is as important as preparing the witness to face the opposing lawyer during the discovery phase of the case.
While it is common for lawyers to spend days preparing themselves to take an effective deposition, these same lawyers mistakenly think they can spend an hour or so immediately prior to the deposition preparing their own witness to be deposed. This can have disastrous results on the defense of a case. A number of years ago, I was involved in the defense of a very complex multi-party explosion that resulted in a number of burn deaths. The deposition testimony of our co-defendant’s employee witnesses was some of the most damaging I have ever seen in a personal injury case. As it turns out, co-defendant’s counsel spent only a very short time on the day before the deposition preparing the witness. The witnesses were grossly under prepared for the subsequent examinations. Because of the poor showing by its witnesses, the co-defendant was forced to enter into settlements that exceed $100,000,000.00. In contrast, our trial team approached witness preparation in a much more strategic manner. We put serious thought into which witnesses we wanted to produce and in what order. We began preparing our witnesses to be deposed weeks before their deposition dates. We assigned one member of the trial team to be primarily responsible for the preparation of all of our witnesses. We also made sure that the witnesses were thoroughly familiar with not only the facts, but also the questioning style and expected strategy of the lawyers that would be deposing them. As a direct result of our witness preparation, the case developed in such a way that we were able to successfully defend the case that no one else thought could be defended.
Here are my thoughts on successfully producing witnesses to be deposed in a catastrophic case.
Control the order and timing of when your witnesses are deposed.
If at all possible, your best witness should be offered for deposition first. This is not always your most knowledgeable witness. Instead, your best witness is the one you have determined to be best equipped to handle questions under pressure, particularly ones that you may not have thought of prior to the deposition. By the time this deposition is finished, you as the lawyer should know 95% of your opponent’s case and be in a good position to prepare the rest of your witnesses.
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