If the word “Shaq” conjures up the image of professional basketball legend and amiable IcyHot liniment pitchman Shaquille O’Neal, you could be missing out on a valuable mnemonic device for preparing witnesses for deposition: Short Honest Answers to Appropriate Questions, or SHAQ.

In a deposition, a short answer gives the other side as little to work with as possible. An honest answer is truthful and responsive to the question that was asked. During the deposition, the defending attorney decides whether an appropriate question was asked; when an objection is raised, the witness should stop speaking, listen to the attorney’s objection, and then answer the question as briefly and forthrightly as possible.

The SHAQ approach to answering deposition questions is one of the main areas that must be covered when preparing a witness for his or her deposition, according to William Elward, a veteran trial lawyer and senior instructor on evidence and trial advocacy at the Loyola University Chicago School of Law.

Elward, speaking Dec. 14 during the National Institute for Trial Advocacy’s program, “The Ethical Woodshed: Witness Prep for Deposition and Trial,” offered a number of tips to help attorneys thoroughly prepare deposition witnesses for their time under oath, and how to guide deposition witnesses through their deposition without engaging in unethical witness “coaching.”

A Deposition Is Not a Trial

Elward remarked that plaintiffs and key witnesses should always be reminded that depositions are different than trials – and that there will be other opportunities for the witness to tell his or her story. “These witnesses have things that they want to say,” but they should be discouraged from doing so, Elward advised.

“You have to explain to a deposition witness this is not a trial,” Elward said. “This is not a chance for you to tell your whole story. This is a chance for you to give the briefest, true answer to any question possible.”

On the subject of “appropriate questions,” Elward advised that deposition witnesses be told to stop speaking and listen carefully to the defending attorney’s objection. If the uttered objection is “calls for speculation,” then the witness should know to frame the answer with the caveat that it is, in fact, merely a guess. Similarly, an objection for “lack of foundation” should be understood by the witness as a suggestion that the witness does not possess the facts necessary to give a reliable answer to the question.

In a deposition, a short answer gives the other side as little to work with as possible. An honest answer is truthful and responsive to the question that was asked. During the deposition, the defending attorney decides whether an appropriate question was asked; when an objection is raised, the witness should stop speaking, listen to the attorney’s objection, and then answer the question as briefly and forthrightly as possible.

The extent to which attorneys can shape witness testimony by the manner in which they articulate objections raises the “speaking objection” or “suggestive objection” issue, which can cross the line into unethical conduct if the attorney is deemed to have, in effect, put words in the witness’s mouth. Many jurisdictions forbid objections that have the effect of coaching a witness.

Other witness preparation advice included:

• Make sure the witness understands that the testimony will be under oath, every word written down by the court reporter.
• Ask if the witness is taking any medications or has any physical reason why he or she can’t give full and honest answers.
• Unless the witness has been subpoenaed to bring documents to the deposition, the witness should be told to “bring nothing but a smile” to the deposition. Leave the cell phone in the car.
• Advise the witness to dress appropriately for his or her role in the case.
• Prepare the witness for the possibility of technology glitches if the deposition is to be conducted remotely.
• With remote depositions, ensure that the background behind the witness is appropriate.
• Don’t tell the witness to “not be nervous.” Being nervous is an appropriate response to an important legal proceeding.

Elward advised attorneys to take the time to get to know the witness during the deposition preparation process, to give them an opportunity to talk about themselves. How’s it going at work, or at school? Does the witness have childcare issues? Does the witness feel pressed for time? Does the witness need to be somewhere else other than preparing for the deposition?

“You need to find out that stuff,” Elward said. “And it’s actually a good deposition skill for you to sort of depose your own witness.”

The Line Between Preparation and Coaching

Elward also addressed the question of when an attorney can explicitly suggest helpful testimony that the witness might give during a deposition. This is a topic that the American Bar Association very recently addressed. In ABA Formal Opinion 508 (Aug. 5, 2023), on the ethics of witness preparation, the ABA published a long list of proper witness preparation techniques, suggesting attorneys have very wide latitude in how they prepare witnesses for depositions and trials. The ABA noted that Model Rule of Professional Conduct 3.4(b) prohibits a lawyer from advising or assisting any witness to give false testimony. However, the ABA explicitly said that it is permissible for lawyers to “suggest a choice of words that might be employed to make the witness’s meaning clear.”

Elward pointed to District of Columbia Bar Association Opinion 79 (Dec. 18, 1979), which also stated that a lawyer may ethically suggest witness testimony so long as it is not false or misleading. “The rule for information for witness preparation is extract, don’t inject,” Elward said. “You want to practice extracting information from the witness, not injecting.”

According to the D.C. Bar opinion:

“[T]he fact that the particular words in which testimony, whether written or oral, is cast originated with a lawyer rather than the witness whose testimony it has no significance so long as the substance of the testimony is not, so far as the lawyer knows or ought to know, false or misleading.”

With this view of the attorney’s ethical obligations in mind, Elward gave three hypothetical circumstances that, in his view, an attorney could ethically suggest language a witness might use during an upcoming deposition. First, he said, an attorney could ethically suggest language that would be a stronger way for the witness to tell the truth. If the witness initially described a motor vehicle mishap as an “accident,” it would be acceptable to suggest to the witness that a “crash” is what actually occurred.

Second, it would be acceptable when preparing a personal injury plaintiff for her deposition to advise her that no recovery is legally possible under a certain set of facts (e.g., the victim was not wearing a seatbelt at the time of the accident), and only then asking the plaintiff whether she was wearing a seatbelt at the time of the accident.

For his third hypothetical, Elward mentioned a situation in which a witness – during deposition preparation – misremembered a particular fact (e.g., the location of the accident) and testified in a way that was at odds with the witness’s prior statements and the facts recorded in a police report. In this situation, the witness could be presented with the contradictory information and asked, again, whether or not the witness’s prior statements and the police report were not, in fact, accurate as far as the location of the accident.

Readers interested in additional tips on effectively preparing witnesses for depositions are invited to read our articles on taming the fears of first-time deposition witnesses and preparing witnesses for remote depositions. While it’s true that there are ethical dangers in witness preparation that strays into “coaching” the witness, the fact remains that the surest way to violate professional guidelines is to not prepare thoroughly enough. As the ABA said in Opinion 508, “a lawyer’s failure to prepare and guide a witness would in many situations violate the ethical duties of competence and diligence.”