In his article Eight Traits of Great Trial Lawyers, former U.S. Federal District Judge Mark W. Bennett remarked that lack of preparation topped the list of trial lawyer shortcomings in his courtroom. “Preparation,” Judge Bennett wrote, “means thinking of every detail, especially when communicating with juries.”
Modern discovery depositions are a good case in point. When preparing a witness for deposition, the substance of the witness’s testimony is paramount, of course. After all, the purpose of a deposition is to discover relevant facts and to establish a factual basis for a party’s claim for relief. However, the confidence displayed by deposition witnesses, the extent to which they can be clearly heard and seen during remote proceedings, and their ability to deliver a factual, credible version of events all contribute significantly to a successful deposition.
First-time deponents are likely nervous, gripped by several fears: the fear of the unknown, the fear of making a mistake, the fear of appearing foolish, the fear of losing their case. The deposition is possibly the first “presentation” they’ve made since leaving school.
The litigation objective of obtaining a winning deposition from rookie deponents thus requires litigators to play several roles: the psychologist who puts the witness at ease during the deposition, the movie director who ensures that the witness is appealing and credible on camera, the sound engineer who makes sure the witness is clearly heard, and the storyteller who wraps sound and images into a compelling, easily understood narrative for the factfinder.
In all of this, preparation is key.
When preparing for depositions, litigators should be sure to cover the following five bases with their witnesses. These steps may not change the substance of the deposition’s testimony, but they will ensure that the testimony is delivered confidently in a way that inspires credibility with the judge and jury.
- Eliminate Fear of the Unknown
The deposition witness should be informed where the deposition will take place, what the room will look like, how long the deposition will last, and who will be physically in attendance. Rather than allow their witnesses to sit alone at the deposition site, where apprehension can set in, many litigators will arrange to meet the witness at their office and then travel together to the deposition site.
Litigators should explain to their witnesses why the opposing attorney might make an objection to their testimony. The witness should also be told how objections will be resolved, and that an objection is not a sign that they have done anything wrong. The frequent interruptions that attend most depositions should be expected and not a cause for concern in the witness’s mind.
Finally, and obviously, the deposition witness should be informed of expected topics of inquiry from the examining attorney.
- Describe Precisely What to Bring to the Deposition
Many litigation experts believe that deposition witnesses should not carry anything with them to the deposition, particularly materials used for deposition preparation. Court documents, letters, interview notes should be left at home. Even cell phones should be kept in the car or somewhere outside of the opposing counsel’s view. Possession of these materials invites questioning from opposing counsel and opens the door to inquiries regarding text messages and emails that might be readily accessible on the witness’s phone. Deponents should be informed precisely what to bring with them, as well as the reasons why.
- The Lifeline: Communications With Counsel
Most deponents are reassured by the knowledge that their attorney is available to assist them deliver their testimony. However, local court rules and case-specific remote deposition protocols may limit the ability of the deposition witness to communicate with counsel and third parties. The witness should be instructed on the procedure for communicating with counsel, and for requesting a break if the need arises.
Deponents should also be advised that too many requests for off-the-record discussions with their attorney could compromise their credibility. Witnesses who frequently seek counsel’s assistance — or are seen looking off to the side of the video — risk undermining their credibility with the factfinder.
- Looking Good, Appearing Confident
Witnesses should receive guidance on how to dress for their deposition. Distracting clothing and remarkable personal features will be noticed and will detract from their testimony.
On the technology side, lawyers should make sure that the deposition is well-lit, that there are no distracting backgrounds in view, that the camera angle is flattering to the witness, and that the sound of the witness’s voice is clearly audible on the recording.
Video depositions and remote depositions should be rehearsed on the technology platform that will be used in the deposition, with the same computer hardware that will be used in the deposition. Lawyers should be wary of a witness’s assertion that he or she is sufficiently tech-savvy to participate in a remote deposition. Pre-deposition training and verification are critical.
- Tell Deponents How to Answer Questions
Finally, deposition witnesses should be advised on how to answer questions. This isn’t always obvious to witnesses; many people believe that detailed answers are more credible than brief ones. The dangers of long-winded, discursive replies to simple questions should be discussed with every deposition witness. Ideally, the witness should participate in a practice deposition to make sure that they will deliver helpful, credible testimony when the big day arrives.
During the deposition, witnesses should:
- listen carefully to the question asked
- pause to ensure the question is understood
- consider carefully the answer to the question
- deliver the answer clearly and simply, without volunteering any information not called for by the question
The witness should also be advised not to talk over opposing counsel. Valuable testimony might be lost if it is obscured by multiple voices, and the witness also risks appearing argumentative by speaking over others during the deposition.
Achieving the Objectives
Fortune favors the prepared litigator.
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