Gearing Up for Battle - How to Prepare Your Deposition Witness Effectively

by JD Supra Perspectives

Understand the Basics

When a witness’ deposition has been noticed, it is important to educate the witness first about what to expect and what a deposition is. These are a few key pieces of information to share with a deponent and help set her expectations about the process. A deposition is an oral examination by an attorney, given under oath before a court reporter. An attorney for any side may ask questions during the deposition, but the questions from one side must conclude before another side may begin questioning the deponent. A judge is not present in the room, but the other side is allowed to have its lawyer and a business representative present.

A deposition may be videotaped, and if it is videotaped, the camera is focused only on the witness being deposed. Neither attorney or any other individual in the room is filmed on camera, although the voices of anyone who speaks during the deposition can be heard on the videotape. 

In federal court, a deposition is limited to seven hours of time. But, a seven-hour deposition can last ten or more hours because any breaks in the deposition questioning are not counted toward the seven-hour limit. Thus, although a deposition is time-limited, the maximum length of the deposition can feel to the deponent as if it was unlimited in duration.

Speaking as an Individual or on Behalf of a Company

Knowing whether the deposition is an individual, fact witness deposition or a corporate, 30(b)(6) witness deposition at the outset of preparation is critical.  If it is an individual deposition, an “I don’t know” or “I can’t recall” answer may be appropriate if the witness truly does not recall something being asked. 

However, in a 30(b)(6) deposition when the witness is speaking on behalf of a corporate entity, a witness cannot fail to recall something unless the corporation on whose behalf the witness is testifying does not recall or no longer knows the information.  The witness stating “don’t recall” in a 30(b)(6) context must be able to explain why the corporation does not recall or not know the answer to the question.  In a 30(b)(6) deposition, the topics that will be covered in the deposition are provided in advance, and the witness or witnesses who are designated to speak on the corporation’s behalf have a duty to research the corporation’s knowledge of those topics and come prepared to testify about what the corporation knows about those topics.  A designee cannot merely rely on his or her own personal knowledge when responding to a 30(b)(6) deposition, and a witness who comes without having done adequate preparation for a 30(b)(6) will likely have to be deposed again after she has made a more thorough inquiry into the topics listed in the notice.

Taking Regular Breaks

Importantly, the witness is the “main event” in a deposition, and the witness has a right to take a break at any time as long as the question posed to the witness has been answered before the break occurs. Often, an individual who has never before been deposed can become intimidated by the process and forget that he is allowed to request breaks as needed. This is particularly important as the day wears on. Sometimes, a deposing lawyer will want to rush through critical questions to be able to develop a momentum in the questions and to fatigue the witness. If this is happening, it is certainly appropriate for the witness to request a break to get some fresh air and to refocus his concentration. 

It is equally critical that a witness takes a lunch break, if even just to have time to pause and contemplate the questioning thus far. Taking a lunch break will enable the witness to consider the morning’s questions, refocus on concentrating, and get some food to help keep up the witness’ energy.  Sometimes, witnesses who agree not to break for lunch because of an attorney’s desire to catch an earlier flight or claim to only have “30 more minutes” left of questioning find themselves facing difficult questions under pressure when their concentration is lacking because they are hungry, tired and frustrated.  This situation can lead to less than desirable testimony from a witness who is not fully concentrating on the questions being posed, and it is entirely avoidable when the witness remembers that he can, and should, take regular breaks during the deposition. 

One final point about a deposing attorney’s statement that she is “almost done” with the deposition. Sometimes, this comment is made to induce the deponent to let his guard down and start thinking more about the completion of the deposition than the questions that are being posed, and other times, this comment is made when a particularly difficult and important line of questioning is coming because it has purposefully been left to the end of the deposition. It is important for the deponent to remember that when the deposing attorney claims that she is “almost done”, it is not the time to start relaxing. Rather, it is important for the deponent to remain focused, continue to listen to the questions being posed and provide answers to the direct question.

Etiquette and Decorum are Important

Particularly when a deposition is being videotaped, it is important to remind a witness that his general demeanor and facial expressions will be recorded.  A snide look or a side eye glance can have quite an impact in trial when a clip of that witness’ testimony is played to a jury. Additionally, reminding a witness to be polite to the opposing counsel and not to act defensive is important. 

Witnesses who boast about themselves, appear defensive or become argumentative tend to lose credibility before a jury when clips showing that behavior are played. It is important to remain composed and poised at all times, even if the opposing counsel seems to be asking the same question multiple times. It is during those times when a questioner is asking very similar questions repeatedly that witnesses can tire, become frustrated and let their guard down, and often that moment is when the witness’ testimony is less than flattering. Stay focused and remain in control of your emotions, and take a break if your ability to stay calm and focused is starting to wither.

Listen to the Questions

When meeting with a witness to prepare her for a deposition, it is important to remind her that words matter and the words used in the questions posed are important. A witness should listen carefully to each question that is posed and answer the specific question that was asked. A witness’ job in a deposition is not to win the case for her side, nor is it to tell the lawyers everything the witness possibly knows that he or she thinks may be important. A witness’ job in a deposition is to listen to the questions being asked and to answer those questions honestly. 

Adding unnecessary detail about something that has nothing to do with the question is the easiest way to protract a deposition. Once information is volunteered, it is incumbent on the questioning attorney to learn more about that new piece of information. Although that information may have nothing to do with the important issues in the case, once the witness has volunteered it, a thorough cross-examiner will follow-up and probe on that issue. Often, witnesses think that offering additional information in response to a narrow question will enable the deposition to conclude sooner. However, that strategy usually backfires and has the opposite effect of making the deposition last even longer. Stay on message and provide a response to the specific question being asked, not a question you want to answer or one that you think the questioner should have asked.

Lawyers Make Bad Deponents

Although lawyers are usually in the position of taking and defending depositions, at times, a lawyer may also have to serve as a witness. When preparing a lawyer-witness, it is important to remind the counselor that the rules of engagement apply equally to them. Trying to outsmart the lawyer taking the deposition is never a good idea, yet lawyer-witnesses often think that they can accomplish this by answering more than just the question being asked or providing information in response to a question that was not even posed. Lawyer-witnesses try to think three steps ahead of the lawyer questioning them, and as a result, the lawyer-witness loses perspective and forgets the most important rule—to focus on the question being posed. 

Reminding a lawyer-witness that it is not his job to win the case for your side in the deposition and that instead it is his job to simply answer the questions as they are posed are critical instructions that cannot be given too frequently to lawyer-witnesses. Moreover, if a lawyer-witness seems to be engaging in verbal swordsmanship with the questioning attorney, then it is time to request a break and remind the lawyer-witness of his only obligation—to answer the precise questions being posed. Because lawyer-witnesses can be particularly troublesome to defend during depositions, having them participate in a videotaped, vigorous mock cross-examination with a lawyer they do not know can go a long way to emphasizing the reasons why it is important for the lawyer-witness to heed the instructions that apply to all deponents.


[The Managing Partner for Kilpatrick Townsend's Atlanta office, Audra Dial is an experienced litigator practicing in the firm's patent litigation team and handling complex commercial litigation involving technology.]

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