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 Your Witness Give a Good Deposition

During these unusual times, most jury trials are out of the question, but depositions are still being taken, and witnesses therefore still need help to testify at their best.

One of the keys to a successful deposition is a witness’ attitude. Help your witness by offering the following suggestions: 

1. Tell the truth

No matter how painful, scary, or awkward it may be, tell the truth. Your attorney can deal with anything, as long as it’s your truth.

2. Trust your attorney

Your attorney knows the case better than anyone. Follow his/her guidance, not advice from YouTube, your family or your best friend. 

3. Be sincere

Leave your sarcasm, joking around, your ‘whatever’ postures, coyness, seductiveness or cuteness at home. Sincerity wins every time.

4. Be straightforward

Don’t be evasive or beat around the bush. Stick to the facts as you know them as closely as possible. 

5. Be accurate

Tell it like it is. Resist the temptation to over-state your case, dramatize or otherwise embellish.

There is, of course, much more to a successful deposition, but adopting the above tips will give your witness a solid foundation from which to testify.

The Advantage You Need to Win Your Case

Most lawyers, when they prepare witnesses to testify, are understandably focused on the key substantive issues. They want to make sure the witness remembers important points. Great! But in so doing, lawyers often rely on their prepared questions, leaving little or no room for information not elicited by the lawyer’s direct questions.

As I prepare witnesses to testify, they disclose unexpected information that I then present to the lawyer--often to his/her surprise. Frequently this information has significant impact, either because it is helpful to a winning argument or it permits the lawyer to defuse potentially damaging issues. My ability to get such information is not because of any great magic done by trial consultants, it’s simply the result of a client-centered witness prep approach. Such critical information is just as available to the lawyer and readily obtainable by asking client-centered open-ended questions.

You see, a witness is highly unlikely to come up spontaneously and voluntarily with all you need to know, unless prompted with an open-ended question. Why?

            1) The client may feel obligated to answer your direct question directly

            2) Your direct question may only elicit an incomplete description of the situation

Facilitate your client's giving you all the information you need by asking client-centered open-ended questions. These encourage the client to tell a story, or describe an event, feeling or situation however the client wishes. Such questions generally start with the words “what” or “how” as in; “What about X concerned you?” “How did you come to Y?” A good follow up is – always –  “Tell me more.”

Ask such questions and your client may very well give you the advantage you need to win your case.