Help Your Witness Give a Good Deposition – Round 2

Civil jury trials still being out of the question, it seems best to continue focusing on how to help your witnesses testify credibly and competently during depositions – which certainly are ongoing, mostly via Zoom.

Here are some suggestions to tell your witness:

1. Realize you’re in charge

When you’re being bombarded with questions, remember--you’re in charge of your response. No one has a pistol to your head, forcing you to respond a certain way.

2. Show respect at all times, be on your best behavior

Legal proceedings are formal proceedings, even when they seem informal, or even downright strange, such as with Zoom. Everything is still recorded and will be used against you if it serves opposing counsel.

3. Be courteous and polite

To everyone involved: opposing counsel, court reporter, any persons observing the proceedings.

4. Remember where your deposition might be shown

Even though a Zoom deposition is held in a number of locations, as opposed to an attorney’s office with everyone present, portions of it may still be read/viewed at a trial, or during negotiations. Always answer and behave as if Judge and jury were present.

5. Be patient

Real depositions, unlike their TV dramatizations, are often tedious. Understand the seriousness of what is at stake and be patient.

Help Witnesses Deal With The Lie

 What frequently occurs as you prepare your witness (usually the client) for deposition or trial, is a resounding “That’s a lie!” to your best attempt to replicate what will be opposing counsel’s “Isn’t it true…” questions.

For all that it may be highly satisfying for said witness to roar “Lie!” it is not good juror strategy. Jurors are best persuaded when they come to the “Lie” conclusion on their own. Encourage your witness to respond to what they consider a “lie” with phrases such as “That is incorrect,” or “That’s not correct,” or “That’s not how I experienced it,” or some such.

Reassure your witness that at trial, the “lies” will be revealed for the jurors, for example through a “Chart of Inconsistencies.” As defense, for instance, you could bullet on a chart what the plaintiff told Dr. A, the different story he told Dr. B, and the yet more different tale he told at deposition. Or as plaintiff, you could bullet on a chart what defendant told the police, what was discovered in emails, what she swore to in interrogatories. Such a chart alone, since it references facts, has more impact on today’s jurors than your witness’s forceful expostulation “And he lied!!” ever could.

Once your witness understands that you will not let the “lies” go undiscovered, he or she will more readily accept your recommendation of “incorrect” as a valid alternative.

Don’t Whine! Win Juror Votes with Witness “Can Do” Attitude (Part II, Defense)

 If plaintiff’s counsel’s task is to make sure the client/witness doesn’t alienate jurors with a purely “they done me wrong” victim mentality, defense’s is different.

“Don’t whine” might be better stated “Don’t defend,” which is mightily challenging for defendants on the stand, who generally believe they are unjustly accused. Yet the defendant who argues with opposing counsel, whose testimony is a litany of “Yes, buts” and who attempts to evade plaintiff’s counsel’s most basic questions, will not find favor with jurors.

Instead, explain to your defense witnesses that during cross, at best, they will only be able to give a qualified “yes” or “no” (as in “At that time, yes” or “In that situation, no”), and at all costs must not argue with opposing counsel (“That’s not how it was, I/they. . .”).

Reassure your witness by role-playing with them how direct will go, not just by telling them “Don’t worry, I’ll unscramble all that in direct.”

The “can do” attitude for defense witnesses comes through on direct, when the witness, if and as is appropriate, educates jurors to the witness’ role, their experience, their situation. An attitude of imparting information, of sharing an experience, will gain far more sympathy with jurors than witness belligerence.