GPSolo Magazine - September 2006

Trial Practice
Depositions from the Client’s Perspective

Most litigators who write about depositions have never been on the receiving end of the inquisition and do not understand the experience as a participant. I am decidedly I a litigator. I have labored through more than half a dozen depositions as a witness, as well as counseled a number of corporate executives through the process.

A litigator’s starting point in preparing to depose or defend a corporate witness should be to understand the mind of the businessperson. Most high-powered executives cannot even conceive of failure. It is precisely this carefree attitude that ultimately craters into litigation. When this happens, everyone scrambles for the exits, and the litigator is left to piece together what went wrong—sometimes through embarrassed, reluctant, or openly hostile witnesses.

Before preparing company officials for deposition, the prudent litigator should conduct independent due diligence on the client and the industry. There is no excuse for the litigator not to review the company’s public records, as well as its website for insights into the corporate culture. And seek out newspaper articles and analysts’ reports, which may portray a more balanced view of the client.

In preparing corporate executives to testify, the litigator should at a minimum consult in-house counsel. They possess a wealth of information about both facts and the corporate culture. But be mindful that they may have biases and hidden agendas. Check their statements against objective evidence.

One aspect of depositions that most witnesses do not understand is that depositions are for the benefit of opposing counsel; anything said in a deposition educates the other side and will be used against the company in court. Most litigators routinely advise their clients that answering “I don’t know” or “I don’t remember” is not an admission of stupidity.

A thorough review of documents with the witness is essential. Whenever I am subpoenaed for a deposition, I immediately ask for copies of every document produced in discovery that bears my name, no matter how trivial.

Special handling. At some point every litigator must deal with “special” witnesses.

Conflicted witnesses. Be alert to situations where the company’s and the witnesses’ interests are in conflict. Make sure the witnesses understand that you represent the company, not them individually. Never hesitate to recommend that your client consider separate counsel for employees who may need it.

Hostile witnesses. By the time the litigator gets into the act, whatever damage was done to the witness’s psyche has festered for a long time. Again, being up-front is essential to gain the witness’s cooperation. Don’t pretend to be her best friend or ignore the problem that is the source of the hostility. Investigate ahead of time why the witness was fired or otherwise mistreated and whether anything can be done to fix the problem.

Corporate representatives. Another special type of witness is the corporate representative deposed under Federal Rule 30(b)(6). Litigators often do a poor job of explaining this role. Most corporate representatives do not know that they have affirmative duties beyond just waking up the morning of the deposition and showing up on time. They must inform themselves about matters that will be addressed. Failing to do so can have serious consequences for the deponent and the company because lack of proper preparation can lead to sanctions for both.

In-house counsel. Some in-house counsel develop an arrogant attitude toward outside lawyers that carries over to opposing counsel. These types need to be humbled early on, with tough questioning during preparation so they shed their arrogance before the actual deposition. Others are mousy bureaucrats who will not assume any degree of responsibility, making them next to useless as witnesses and counsel. In these cases, litigators would be wise to act as psychologist and cheerleader, propping up such in-house lawyers’ fragile egos with assurances that they are the best witnesses the litigator has ever had. The litigator’s approach to these two types may differ, but the result must be the same: In-house counsel must buy into the theory and strategy of the case and the role they must play in the matter.

Tricks. No deposition preparation is complete without teaching the witness to recognize and avoid the tricks that trial lawyers employ to trap unwary witnesses into damaging admissions or embarrassing inconsistencies.

The incontrovertible statement. Opposing counsel will ask the witness to agree with some seemingly uncontestable fact, such as, “You would agree with me, Ms. Witness, that the sun always rises in the east?” The temptation to agree is great for the statement seems innocuous. Advise the witness not to be fooled; she is being set up for a trap later on, when she will be shown some document that is inconsistent with the earlier incontrovertible fact and be asked to reconcile the two. The proper response to this trap is, “It depends.” This way, the witness leaves enough wiggle room to argue that the particular situation somehow can be distinguished from the general rule.

The misdirection play. This trap leads the witness to think opposing counsel is headed in one direction when in fact she intends to double back against the grain. Typically, this ploy turns the witness’s own ego against him. The obvious remedy to this trap is similar to the one above: Do not make or agree to sweeping, absolute statements.

The big lie. Attorneys lie. This may come as a shock to some readers, but unfortunately, it’s true. In a deposition, the interrogator may lie to scare the witness into thinking that a fact has already been established and she would be committing perjury to disagree with it. The antidote to this is thorough knowledge of the facts and strict adherence to the rule that the witness should testify only to facts about which she knows something.

Liar, liar. A variation of this technique is for opposing counsel to confront the witness with a statement made by another witness, which may be true or false, and ask whether the current witness agrees with it. If the witness does not, opposing counsel, in a most indignant tone, will ask, “Are you calling Mr. Smarty Pants a liar?” The proper answer, then, is, “What I am saying is that Mr. Smarty Pants is simply mistaken.”

Asked and answered. Warn the witness that opposing counsel will repeatedly ask the same question, usually in slightly different forms and spread throughout the course of the deposition, in the hope of catching the witness off guard and in an inconsistency. Teach the witness to repeat the same answer again and again to any question that even remotely resembles the question answered earlier in the deposition.

After the deposition. When the deposition finally grinds to an end, the witness typically breathes a sigh of relief. Unfortunately, her task is not yet over. Instruct the witness to read the transcript carefully when it arrives, both for mistakes and to note the ways in which the testimony is distorted on paper. A witness’s jokes, asides, and sarcastic comments usually do not come out the way they were intended, and the witness should be made aware of this to avoid making the same mistakes at trial.


José Sariego is senior vice president, business and legal affairs, for HBO Latin America Group in Coral Gables, Florida. He can be reached at

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- This article is an abridged and edited version of one that originally appeared on page 16 of Litigation, Spring 2006 (32:3).

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