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Preparing Your Witness for Deposition

by Jeri Kagel
October, 2009
You’ve received a Notice of Deposition. No problem. As usual, you’ll prepare the witness for his or her deposition as a way of damage control. You’ll take time the afternoon before, or the morning of, the deposition to talk to him or her about the “Golden Rules” of the deposition: “The goal is to get out of the deposition without hurting the case, so don’t volunteer information!” or “Don’t be scared by the overbearing attorney!” or “Don’t be fooled by the nice attorney!”

Even with the Golden Rules, your witness will very likely walk into the deposition scared. He or she might think they should have the Golden Rules memorized, or he or she might be scared of forgetting, or getting confused about how to translate the Rules into answering questions.

What does this mean for you, the attorney? Answer: take the time to prepare your witness. When prepping the witness for a deposition, you are teaching. Take the time to teach well. How much time? That depends on the case and ultimately on the person you are instructing.

How can you be a good teacher? Vince Lombardi, former coach of the Green Bay Packers and winner of Super Bowls I and II, once said he never told his players what not to do because when he did, they were more likely to do just those things that he warned against. Parents know that children are more compliant with positive instruction than telling them what not to do. What was true for Vince Lombardi and parents holds true for those of us who teach our witnesses how to be good deponents. When you tell someone what not to do, they walk into the deposition more afraid of doing the wrong thing than understanding how to do the right thing. So when you’re prepping your witness, teach what to do, not what not to do!

Start by putting the lesson in context. Here the context is, “What is the job of a deponent?” I start by telling my clients:

The attorney taking the deposition wants to learn as much information as he can to bolster his case and weaken ours. He wants to discover how to proceed with preparing his case, to confuse you, to ultimately use the deposition transcript against you at trial. Your job is to make the attorney’s job hard – hard to get information and hard to discredit you. Not impossible, just hard. “Making the attorney’s job hard” means that how you answer and what you say forces the deposing attorney to think of and then ask more questions.

Once the witness understands the context, then I start teaching the lesson, which is how to make the deposing attorney’s job hard. The format that works best for me is to first give a general rule, then connect the rule with how to answer a question, and finally acknowledge some of the difficulties in following the rule and remind your witness of the goal of his or her job.

For example, teach the negative Golden Rules by converting them into positive rules. Instead of telling the witness not to volunteer information, tell him or her to simply answer what’s been asked and to avoid explanations. Instruct the deponent to use caution when starting a sentence with the word “because” or the phrase “the reason is.” Make the deponent aware that giving an explanation to avoid looking stupid or to make the attorney understand is a natural impulse, but giving an explanation is not doing the deponent’s job. Explanations make the deposing attorney’s job easier.

We know that after the deposition, the witness is likely to think, “I wish I had mentioned X, Y, or Z.” So tell the witness to give himself or herself a way out. A “way out” means saying something like, “I’m not sure I can remember everything sitting here right now,” or “That’s all I can think of right now.”

After I run through teaching my rules, I use the same format to go over what are often trouble spots in depositions. Some common trouble spots include when the deponent’s attorney makes an objection but the witness is told to answer, or when the deposing attorney asks questions about documents or pictures. Other trouble spots are more specific to the kind of witness being deposed. Think of where that deponent fits in the entire story of the case, and go over those reasons that can be confusing or problematic for the deponent. I also ask what questions the witness is most afraid of so that we can brainstorm effective responses.

Two final pieces of advice. First, when a deposition is going to be videotaped, or when you want the deposition to be your lightning rod for settlement, the job of the deponent may change, because the goal of the deposition outcome is different. Thus your instructions about the job of a deponent may differ from those here. For example, if the deposition is geared primarily for settlement, then you may want the deponent to be more forthcoming, give more details or say more to make their case. Second, make sure to give the deponent time to practice. If you can, videotape the practice session so you can show the deponent where (and why) there is room for improvement.

Deposition preparation is more important now than ever. As litigation budgets get tighter, depositions are becoming defining moments that can win your case by strengthening your settlement posture or by alerting opposing counsel to the resilience of your claim or defense. So take the time to teach your witness some positive Golden Rules for depositions.


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