On Litigation Skills

Defending depositions is harder than it looks because almost all of the work should be done before the deposition begins. If you prepare the witness for what to expect and what to do, you can sit back and listen after the witness is sworn.

Telling the Truth

Start by explaining to your deponent how important it is to tell the truth. It’s not just an ethical obligation; it’s good strategy. Your mother was right when she told you that we weave a tangled web when we try to deceive. By trial, your opponent will probably have the evidence necessary to cut through the tangled web and damage the witness’ credibility on cross-examination.

There seem to be two schools of thought, however, about how much truth the deponent should be prepared to tell. Many lawyers seem to think that ignorance is the best defense and that opposing counsel will not be prepared, so they do nothing before the deposition to help their deponents remember what happened. Others, including me, believe that such an approach is shortsighted. At trial, if not before, someone will have to explain the bad documents and other bad facts in the case. A witness who did not remember most of them during a deposition will have a very hard time doing that.

In other words, if you want your witnesses to be effective at trial, it is not enough to simply tell them to be honest. You have to help them by showing them what the documents and other evidence will show. Almost no one can remember all of the details of a complicated deal that closed years ago. We can’t simply play back a memory tape in our heads. We have to reconstruct events like birds building nests with twigs and scraps.

So, when I prepare witnesses for deposition, I try to show them every important document that relates to their testimony and tell them as much as I can about what other witnesses will say. Otherwise, the deponent may reconstruct a facile but faulty version of events that can be conclusively contradicted. That will be very disconcerting to the witness if confronted with the contrary evidence in “real time” during a deposition, and it can erode his or her credibility, especially if it’s caught on videotape. By contrast, if a witness knows about all of the important evidence before the deposition, he or she will naturally “connect the dots” in a way that will stand up better under cross-examination. The process of going over evidence takes time, so try to have more than one preparation session and spread them over a few days or even weeks so that the witness has time to mull over what happened.

Don’t Volunteer

Everybody knows that a deponent is not supposed to volunteer information, but almost every deponent does. Here again, it is not enough to simply tell the witness what to do.

Most people want to be liked and understood, and many of our clients and their employees are very good at getting what they want. People who have made a career out of explaining themselves (and talking themselves out of trouble) find it very hard to break old habits. That was recently reinforced for me when I was a deponent. My lawyer had to “woodshed” me more than once for being too chatty and eager to please.

Start preparing your deponent by explaining that they are playing defense and should not try to score. They are not there to help. The purpose of the deposition is for the other side to get admissions or other grist for cross-examination — not for your side to make points. As one of my partners says, “When you are explaining, you are losing.” The deponent has to answer each question well enough to be able to testify effectively at trial, period. Anything more — such as trying to speed up an unfocused examination or even making a joke — is just asking for trouble.

Answering questions truthfully without volunteering more information than required takes practice, so spend some time role-playing. Try to get someone else to ask the tough questions so that he or she can get confrontational without upsetting your relationship with the witness. Practice also helps the witness understand the rules. You may be surprised how many witnesses will flub even the easy questions the first time around. Ask them if they have talked to anyone about their deposition, and many of them will freeze and say “no.” You have to remind them to just say “yes” and then wait for the next question. You then can object and instruct them not to answer that next question if it calls for the substance of any privileged conversation with you.

If you are like me, you will still find the deposition itself a little nerve-wracking. At that point, your ability to influence events has diminished substantially, so your primary comfort will be the work that you have already done.