For Deposition/Negotiation Success: Speak to the Jurors

 

Your client is a rational, mature businessperson. You expect them to do well at their upcoming deposition. After all, they have plenty of real-world experience, and of course, you go over the facts of the case with them as well as some deposition basics. You are subsequently horrified when they waffle, or get angry, or are evasive, or volunteer or do any of the multitude of the other communication sins that constitute poor testimony.

But here’s the thing. Whether your witness is a CEO or a homemaker, he or she must be prepared as rigorously for deposition as if they were going to trial. Even though, these days, trial is highly unlikely. Why? Because trial or no trial, depositions are critical to your effectiveness in negotiating the best possible settlement for your client. Yet time after time, lawyers fail to prepare witnesses sufficiently for deposition. The reasons are simple. Too much to do, too little time. 

Here's a tip. Tell your witness that although it may seem like he/she is responding to opposing counsel’s questions, in truth, the witness is addressing the jurors. It doesn’t matter whether or not the matter ever gets to trial, when the witness responds as if he/she is speaking to jurors - being informative rather than defensive, polite and even-tempered despite opposing counsel’s ploys - the quality of testimony improves dramatically, and with that, far greater chances of your (and their!) success.

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.