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.
Consider the effect of deposition scheduling.
Should the deposition be scheduled to begin in the morning or afternoon, on a Monday or a Friday? These are important considerations and can have a significant effect on how well prepared your opponent is for the deposition and how thorough his deposition is. For example, I once defended a case against a lawyer that was known for enjoying the night life. As a result, we made sure that depositions were schedule for out of town so that he could enjoy the night life as much as possible. Just to be helpful, we also suggested good restaurants and bars in the city for him to visit. In that case, we also tried to start the depositions early in the morning, but made sure to stop in time for happy hour. As a result, the lawyer was often hung over for the start of each deposition.
Prepare the witness early and often
Too little time is spent preparing witnesses to be deposed. Most lawyers think they can tell the witness not to volunteer information, not to guess and to make sure they understand the question and be done with the witness preparation. These are the lawyers who do not understand why their cases frequently seem to take a turn for the worst.
The first step in witness preparation is preparing the witness on the facts. This seems obvious, but it is often overlooked. Your witnesses need to have a very good understanding of the facts of the case and how the particular controversy developed. In preparation for the deposition, they should study the pleadings and the applicable documents. This should not just be left up to the witness to do on his own. The lawyer preparing the witness should go over these with the witness to make sure they completely understand the background of the action. I also like to have the witness read any depositions that have been taken that may relate in any way to his testimony.
Second, the witness should be prepared on the law of the case. The witness should not look, act or sound like a lawyer. However, they need to know about the law applicable to the case and how the facts tie into the law. If it is a negligence case, they need to be familiar with the definition of negligence and the causation standard. In a products case, the witness should have an understanding of the definition of a product defect and what is meant by the term “unreasonably dangerous.” I have often seen witnesses who are not familiar with the legal definitions unwittingly admit liability because they were not prepared on the applicable legal definitions.
Third, the witness should be prepared for the other lawyer. This one is almost universally overlooked. The witness should be prepared for type of questions and the way in which the other lawyer asks questions. The best way to do this is to have the witness watch a video deposition taken by the opposing lawyer. If a video deposition is not available, then reading a deposition the lawyer has taken can be helpful, even if it is not in the same case. The goal of the process is to give the witness a feel for the style of the other lawyer and the types of questions he is likely to ask. It also helps the witness not feel intimidated by the lawyer.
Fourth, the witness should be prepared to give good testimony. This requires practice. Some people naturally make better witnesses than others. However, every witness can be prepared in such a way to be as good a witness as his personality and intellect will allow. This involves helping them understand the way to dress for the deposition, the way to sit, the way to respond, and how to react when they become frustrated or irritated at the other lawyer. Preparing the witness to stay under control is imperative. The witness must also be prepared for dealing with leading or argumentative questions.
This also involves preparing the witness physically for the deposition. The lawyer should make sure the witness gets a good night’s sleep prior to the deposition. He should also make sure that the witness is not distracted by other matters leading up to the deposition. This is difficult when dealing with the president of a multi-national company. However, it is important that the lawyer insist on uninterrupted time to prepare the witness.
Protect the witness during the deposition
The lawyer defending the deposition should also make sure that he protects the witness during the deposition. He should never allow the other lawyer to be condescending or overbearing to the witness. He should make sure that the witness understands that he is not limited to giving a yes or no in answer to any question. He should also insist on frequent breaks. This gives the witness time to relax and gather his thoughts even if it is just for a few minutes. It also provides an opportunity for the lawyer to remind the witness about their overall deposition strategy. The lawyer should also insist on taking a lunch break. In my experience, working through lunch is a mistake. The witness needs that time to get away from the stress of the questioning and clear his mind. It gives you a chance as the defending lawyer to prepare the witness for additional questions or issues that you have identified based upon the questions and documents used by the other lawyer. It also gives you an opportunity to prepare the witness to “clean up” any less than favorable responses he might have given in the earlier stages of the deposition.
Learn from the deposition
The deposition of your witness provides a great opportunity for you to learn about your opponent’s case. If you pay attention to the other lawyer’s questions, you can learn more about his strategy in the case and his ability than he will ever learn from your client’s answers (assuming your client has been properly prepared). In the deposition, he will undoubtedly reveal all of the documents that he believes to be important as well as the issues that he believes are critical to his case.
In addition, because you have produced your best witness first, you will be in a better position to successfully defend this initial deposition. If you are paying attention, you will also get a great deal of intelligence to use in preparing the rest of your witnesses to be deposed, especially those witnesses that you are afraid won’t do so well in their depositions. These are the ones that you try to schedule to be deposed on a Friday afternoon when you think the other lawyer may want to knock off early for the weekend.