Prepare the Whole Person—Not Just Your Substantive Agenda
Deponent preparation is often conducted under intense time pressure. There is a tendency to adopt a detached, functional, evidence-oriented approach to preparing a person to testify, which tends to focus more on the facts of the message and less on the capabilities and idiosyncrasies of the messenger. We often assume that because someone seems forthright and likeable in conversation, or because he or she is smart and functions at a high level in the workplace, he or she will naturally come across well at a deposition or trial. When the deponent is an important or a long-term client, there is also the risk that well-intentioned but uncharacteristic constructive feedback from you will ruffle his or her feathers. Conversely, when the deponent is someone you do not know very well, it can be awkward to play armchair therapist. At the same time, witnesses may feel social pressures not to burden or distract the trial team with their personal concerns about testifying. The net result can be that potentially serious subsurface issues go unacknowledged and unaddressed.
This happened with a CEO of a technology company defending allegations of patent infringement. The CEO was fearless, self-assured, and charming in conversation when things were going his way, as usually they are. But he was also domineering, with an instinct to seize control of the situation when threatened. He viewed the lawsuit as a distraction from the more important business of running his company, and was vexed that a competitor was trying to steal his profits. Attorneys recommended professional communications training but, after indulging some preliminary pointers from the trial team, he opted to cancel the in-depth preparation. Although the CEO fared quite well on direct examination at trial, opposing counsel was able to goad him on a sensitive issue during cross-examination. The CEO became combative and visibly frustrated when he was unable to gain control of the situation. The jury ultimately perceived him as unlikeable, condescending, and elitist, and the trial team regretted not being insistent on more comprehensive communications training.
What could the CEO’s attorneys have done to prepare him better? While attorneys and deponents vary greatly in their insight and comfort level with the deeper psychological aspects of witness preparation, some initial questions to draw out underlying issues include: What questions do you have about the process of being deposed or testifying? What do you think you will do well? What kinds of things do you think you will find challenging? What would you most like to work on? If your deponent has been deposed before, use the experience as a starting point for discussion. Begin by exploring self-perceptions about his or her prior performance, and how, if at all, he or she would like to do it differently this time.
One practical technique that works for nearly every attorney and deponent is reverse role-play. You will play the role of the deponent, and the deponent will role-play opposing counsel and pose to you the questions he or she most dreads being asked. This process will be both cathartic for the deponent and revelatory for you. It allows you to discover your deponent’s Achilles’ heel in a generally non-threatening manner. Some of the questions will point to hot-button case issues that you were already intending to address, but others will likely surprise you and provide a window into anxieties about peripheral, irrelevant, or inadmissible issues and concerns that might otherwise have needlessly elevated fear and created internal distractions while testifying. The reverse role-play also then serves as an easy segue into exploration of potential psychological vulnerabilities in terms of how the deponent typically reacts when having to explain himself or herself under duress.
While role-play would likely have helped the CEO’s attorneys discover ahead of time more of his vulnerabilities as a witness, there was also his tendency to attempt to seize control of the situation when under pressure. In the courtroom, this tendency manifested itself as interjections, interruptions, and non-responsive answers often starting with “That’s irrelevant. This is what you need to understand . . .” Explain to witnesses that, perhaps unlike their business experience, testifying is not a situation in which they can succeed by trying to change the rules of the game. Brace them for the reality that being deposed or cross-examined will almost certainly be an unpleasant experience, that much of the time they will not get to explain themselves fully or as they would like, and that they will need to surrender to the process and trust that you and the judge will interject as needed to ensure that opposing counsel plays by the rules. While small doses of well-timed righteous indignation can be effective, generally advise your witness to be relentlessly polite, especially in front of a jury. Build your witness’s trust in you that through direct and redirect, you will elicit his or her testimony, without the witness needing to try to control the process.
Communicate the Big Picture, Case Themes, and Home Bases
The counterpart to finding out what your witness most dreads being asked about is finding out what the witness thinks are the take-home points of the testimony. Ensure that you are both on the same page as to what that is. Synthesize your case into overarching themes that tell your case story—perhaps five or six themes for a typical business dispute—and determine how your witnesses fit together like jigsaw pieces to tell that story. Assuming no countervailing procedural concerns (e.g., about discoverability), educate your witnesses how your case fits together in terms of themes, and to which themes the witness’s testimony corresponds. These themes are your witnesses’ safe haven, providing a mental map that will help them orient and frame their answers on both direct- and cross-examination. It will also turn moments of weakness on cross-examination into positions of strength. A leading question from opposing counsel demanding a negative admission can sometimes be used as an opportunity to reiterate a case theme to remind the trier of fact of the fundamental strengths of your case. Specifically, a deponent or witness can respond, “Although it is true that [negative admission], the bottom line is [case theme].” For example, a defense witness in a securities-fraud case might respond, “Although it is true that we did not disclose that fact in our public filings, the bottom line is that this information was already publicly available and these were highly sophisticated investors.”
Deponents and witnesses may become needlessly anxious by overestimating the importance of their testimony to the case outcome. For a deeply offended small-business owner accused of wrongfully terminating a minority employee, this perception was acute and led to a disastrous deposition with a litany of angry, unresponsive answers. He was convinced that if only everyone could see things his way, the lawsuit would go away. A helpful part of his trial preparation consisted of listing the key case themes on one side of a page, the names of everyone speaking on his behalf at trial (his attorney and other witnesses) on the other, and drawing lines from each theme to the witness(es) responsible for conveying a particular theme. Once he understood that his role was as part of a team, he became more cooperative and his answers more responsive. The process of educating your witnesses about the themes in your case and their position as pieces in a thematic evidentiary puzzle can aid them both mentally and emotionally.
Practice the Process of Testifying
The mechanics of careful testimony are different from those of good conversation. Testifying requires careful listening, thinking, and responding in ways that would seem stilted and unfriendly in a normal conversation. Witnesses need to be told this; it is not obvious. Habits of normal conversational smoothing to maintain positive affect and a flow in the dialogue can lead to dangerous volunteering of information and more follow-up questions. Witnesses should be trained and empowered to avoid answering questions they do not completely understand, by asking for questions to be repeated or rephrased as needed. This preparation step is especially important for tentative, frightened, or otherwise vulnerable witnesses. Similarly, witnesses should be empowered and trained to review documents carefully before answering questions about them, and to correct mistakes in their testimony as soon as they realize them. If they understand that jurors and judges do not expect witnesses to remember everything, it will be easier to refuse opposing counsel’s attempts to make them speculate or agree to an unfavorable “spin,” which is consistent with the oath they’ve given to tell nothing but the truth.
In a videotaped deposition, deponents should generally respond directly to the camera in a friendly, educational tone, bearing in mind that the ultimate audience is a neutral jury or judge curious about what the deponent or witness has to say. At trial, it is best for them to direct their answers to the jury or judge as much as possible. This orientation can also help a deponent from being discombobulated by opposing counsel. The camera magnifies body language, especially fidgeting and head-turning to look at counsel, so this should be controlled as much as possible. Things to fidget with, such as pens and rubber bands, should be placed out of reach. If the camera can be positioned behind opposing counsel with defending counsel seated adjacent, all across the table from the deponent, this will minimize the impact of head-turning on the videotape, which jurors otherwise tend to interpret as a floundering deponent looking to counsel for help. Deponents should adopt a relaxed, open posture, leaning slightly forward, and try to avoid swiveling in moveable chairs. They should take a breath before answering each question to minimize the risk of thinking aloud and to allow time for potential objections. These techniques will give the deponent control over the pace of questioning.
It is best to refresh recollection of case facts prior to practicing testifying, rather than during. While integrating the two steps seems more efficient, it tends to overwhelm the witness mentally, undermine his or her confidence, and give you a potentially misleading read on the witness’s capacity to testify effectively.
Testifying is a skill that can be learned with proper training and improved with practice. Where time permits, begin with a mock direct examination to build a witness’s confidence before moving onto more stressful practice cross-examination. It is better in both scenarios to pose questions on the fly based on a detailed topic outline, rather than working from a script. Scripts can give a false sense of security to the witness, who may feel cast adrift if you divert from it at trial. Moreover, working from a script on direct makes cross-examination more stressful, and potentially sets up an undesirable contrast in demeanor of what jurors often perceive as the “rehearsed” versus the “real” witness.
Approach hot-button case issues from different angles and use different questioning styles, sometimes posing a series of short, closed-ended questions and other times open-ended questions, working through the sequence forward, backward, and from different starting points, so that the witness becomes comfortable marshaling an answer no matter what angle the questioner pursues. Also encourage the witness to practice using case themes and inject themes via the “although it’s true” formula described above. This process requires more effort from both of you, but will prepare your witness to be more resilient during cross-examination.
What should you cover when you only have a few hours to prepare a witness? Teach the general pointers outlined above, discuss case themes and which themes the witness is responsible for conveying, spend five or ten minutes on substantive direct-examination questions to accustom the witness to your personal style, and then use the remaining time to practice cross-examination. Ideally, use a colleague unfamiliar to the witness to act as opposing counsel.
People vary in their level of self-awareness and openness to accepting and assimilating feedback about their behavior. Videotaping can be an effective tool when used judiciously to illustrate examples of good witness behaviors versus those that detract from effective testimony.
This process proved helpful for a claims adjuster in an insurance-coverage dispute. The claims adjuster was personable enough in everyday conversation, but stiffened his voice and body noticeably during the practice session. To illustrate his change in demeanor, the trial team videotaped him answering questions about his family’s last vacation (during which he was animated and personable), as well as answering questions about the case issues. The obvious contrast made him aware of behaviors that he was then able to address to bring out more of his personality and maintain his likeability while testifying. Videotaping has also led to eye-opening moments for a number of CEOs who were surprised to see for themselves how often they interrupted the questioner and gave non-responsive answers in an attempt to take control of the situation when feeling threatened or disempowered.
Common Problems and Potential Fixes
Too Reactive to Opposing Counsel
In one case, an expert witness in a copyright dispute had a harrowing deposition during which he felt humiliated by opposing counsel. As a result, his primary goal for trial was to turn the tables and restore his self-esteem. This egocentric goal diverts attention away from honest, clear communication to the fact finder, be it judge or jury. Witnesses in this state of mind need to be educated that the audience for their testimony is the fact finder, and that it is difficult to educate and persuade this audience when focused on trying to outsmart opposing counsel. Rather, witnesses should conceive of opposing counsel as a source of questions that are opportunities to educate the jury or judge about something that the witness knows. It may help your witness to say silently to himself or herself after each question “thank you for asking me that,” and then turn to face the jury or judge and focus on teaching them. It is a small tool that can make a big difference in the likeability and credibility of a witness.
Chatty Cathys and Nervous Nellies
You can throw a lifeline to witnesses who tend to talk too much or talk too little, by preparing them with cues as to how long an answer you anticipate. Instruct the witness to respond in just a few words when you preface your question with “Explain briefly . . .” or in two or three sentences when asked to “explain in detail.” A demonstrative with bullet points, a timeline, or a flowchart can also help keep a nervous or talkative witness on track.
The undesirable practice of “thinking aloud” often underlies a tendency to talk too much while testifying. When it is difficult to determine in real time whether a witness is eventually going to agree with or deny the crux of the question, he or she is thinking aloud. Urge the witness to take a breath before answering, and not to open his or her mouth to speak until he or she knows the very last word he or she is going to say. It takes considerable practice, but with discipline and focus, better habits can be formed.
If you suspect that issue-specific anxiety is the underlying problem, the role-play technique mentioned earlier may help identify the root concern. Other times, a witness’s loquaciousness may stem from a combination of articulateness and detail-orientation, where the witness is trying so hard to be precise—especially during cross-examination—that the witness instead comes across as evasive and persnickety. When lawyers say that lawyers often make the worst witnesses, this is often why. Expert witnesses sometimes suffer the same problem. A strategy to deal with this is to assure the witness that you will be taking careful notes to follow up as needed on redirect to allow more precise answers. Another method is to get the witness comfortable with answers such as “Not exactly,” “That’s a mischaracterization,” or “That’s not quite right,” which shift the burden back to opposing counsel to deconstruct complex questions.
If a witness is generally terrified at the notion of testifying, a prior visit to the courtroom may help (as well as techniques such as guided imagery and systematic desensitization, which are beyond the scope of this article). While on the stand, the witness should focus on deep, calm breathing, muscle relaxation, and open posture, which will help alleviate stress.
An example involved a ground-crew staff member for an airline, testifying in an employment case. The witness was very ill at ease about testifying. In addition, he was extremely suggestible, acquiescing at all the right times on direct and at all the wrong times on cross. The most helpful elements of preparation for him were showing him pictures of “unfriendly” opposing counsel and “friendly” defense counsel so that he would know who was trying to trick him and who was not. It was also helpful to advise him on the themes of his testimony as well as three or four leading questions he should be on the lookout to deny because they were false. Also important was empowering him to ask for a question to be rephrased and simplified when needed.
Witnesses Who Lack Compassion
Many jurors construe case issues from a micro-, consumer/employee perspective. When high-level executives take a macro-perspective on company issues, or claims adjusters and senior human-resource managers use jargon and dispassionately describe claim denials, reductions in force, and terminations, they may appear callous to jurors. To position the witness to educate the jury in an empathetic manner, educate the witness about jury-pool demographics, and to focus on making eye contact with individual jurors to encourage the witness to humanize the testimony. It may also be helpful for the witness to imagine that he or she is justifying a tough decision or a negative outcome to a neighbor or a family member. During a videotaped deposition, the deponent should imagine that behind the camera is someone that he or she cares about to whom he or she is explaining his or her actions.
Witnesses Who Dress Inappropriately
Deponents and witnesses should dress in a way that strikes a balance between comfort, appropriateness, and showing respect for the court. If a witness dresses in a way that violates jurors’ expectations for a job role or is too attention-getting, jurors may quickly draw negative inferences. If a witness’s appearance is surprising, it can be a distraction, or worse, imply that the witness may be someone who is prone to act unexpectedly.
Experts Who Misunderstand the Needs of Their Audience
Experimental research suggests that jurors perceive experts with moderate confidence as more credible than experts who are highly confident and that likeability enhances credibility. Expert witnesses should think of themselves as educators, and focus on the jury like a classroom. They should treat questions received on direct and cross as opportunities to educate the jury. Often, expert witnesses become accustomed to discussing case-related topics with attorneys or colleagues, and greatly overestimate the jury pool’s understanding of the issues—sometimes believing that they need to use jargon to “sound expertly.” This is a mistake because jurors may evaluate the expert in a cursory manner by the mental shortcut of “she sounds impressive” rather than by the substantive content of the testimony. Discuss this with your expert ahead of time and ensure that the questions you pose on direct are comprehensible to the jurors so that you work as a team with your expert to educate the jury. Jury research can be highly informative for finding simple local analogies to explain difficult points. Bear in mind the helpful adage that if your jurors only need to tell the time, do not teach them how to build a watch.
Another problem that experts may encounter is that their desire to be precise leads to unnecessary hedging when describing the state of knowledge in a field, which can inadvertently diminish the expert’s credibility in the eyes of the jury. Instead of over-qualifying answers by listing exceptions to general principles supporting the theory or conceding lack of certainty on cross-examination in light of them, it may be better to respond with just the general principle, couching it as “The generally accepted view in our field is . . .” or that “The weight of the evidence in our field is that . . .” Jurors will not know how to weigh the outlier findings themselves, so highlighting them out of context can be misleading.
A big question with a non-English-speaking witness is whether or not to use a translator. This may put a question mark in jurors’ minds over the credibility of a witness, because they cannot pass their own “smell test.” It is also considerably more onerous for jurors to pay attention throughout the slow rhythm of translated testimony. But sometimes you have no choice. If you do use a translator, ensure that your witness does not respond either verbally or non-verbally before hearing the translated question, as some jurors could infer that the witness is “hiding” behind the translator, especially on more difficult questions. During voir dire, explore whether there are speakers of the non-English language in the venire, as they could dangerously second-guess the translator during deliberations. If you opt against using a translator, ensure that your witness feels comfortable asking for a question to be repeated or rephrased if the witness does not fully understand it.
Your preparation of witnesses will be more thorough and effective if you give careful thought to the array of mental shortcuts that fact finders may use to evaluate the testimony, as well as to the psychological vulnerabilities of your witness. The strategies and techniques described above can help minimize the factors that detract from effective delivery of your witness’s testimony. Moreover, early preparation from this whole-person perspective can pay off by avoiding a stark contrast between a flustered, unprepared deponent and a confident trial witness.
Keywords: criminal litigation, expert witness, deposition, testifying
David Perrott is a senior trial consultant at DecisionQuest in New York, New York.