The hard work has finally paid off. Our new lawyer has been noticed for his progress through the seemingly endless research assignments and discovery projects and all the other tribulations of the recent law school graduate. He has been assigned to prepare a witness for deposition and to defend the deposition. And he alone is responsible.
He has read some of the very fine treatments of the general subject of depositions available in the literature, including our library’s collection of Litigation. He has perhaps been a very junior member of a team that may have prepared witnesses for deposition, has possibly sat through a deposition or two, and may have even attended a program at the National Institute for Trial Advocacy or similar in-house education program. But all of this is a bit like ground training for someone preparing to skydive—the training is fine and necessary, but there comes the time when you first jump out of the airplane all by yourself. It can be kind of scary.
The new lawyer comes to me, one of the seasoned citizens in the firm’s Litigation Department, for some advice about key aspects of the deposition and what he can do to avoid “screwing up” his opportunity. I’ve had this experience many times and it's not the time for a lecture with a long list of do’s and don’ts. It’s time for some reassurance combined with the big-picture discussion. It’s time to illustrate what we are trying to accomplish in this deposition and how we are going to do it. The following topics are what I would discuss with that new lawyer.
Don’t forget the big picture here. In military terms, the situational awareness of a junior officer in combat is limited to the area several yards around him. That’s true enough for the junior officer, but it shouldn’t be true for you when preparing your witness for deposition. This deposition is only one of many moving parts in the lawsuit. It has been noticed for some reason. Certainly, it’s for discovery, but that is not likely all that is at stake here. Presumably, the opposing lawyer thinks there will be value in it for dispositive motions, settlement negotiations, arbitration, or the trial. This means you should consider what the opposing lawyer’s purpose and theory of the case is, along with your own theory of the case and the law. For example, if this is a patent case, is this the witness who the opponent thinks will provide factual testimony that can be used to show that the invention was on sale more than a year prior to the patent application and, therefore, the patent is invalid? If you think so, you had better be familiar with what needs to be shown to prove this. If that is the opponent’s goal, what facts does he need to get from this witness and what effect will it have on the overall case if he succeeds?
You also need to focus on three more things: the witness, the witness, and the witness. I understand you may be nervous about how you will perform. But you need to put that aside and project a sense of calm confidence for your witness. No one who is about to be deposed relishes the prospect. A witness at this stage is about to enter a strange and forbidding world, and she has almost no idea what to expect. Whatever preconceptions witnesses have probably come from television reruns in which a sharp, aggressive, mean-spirited bully makes a fool of the helpless witness. A witness (or, equally ominous, her employer) may be a defendant in a case, and the witness has convinced herself that now some snag-toothed lawyer is about to make her take the fall for the whole mess.
Now, some witnesses will tell you that they are not the least bit concerned about the upcoming deposition. This is generally a false bravado that will evaporate when the witness is asked the first question after her name. The deposition can take a quick negative turn, but you can prevent this by insisting on a thorough preparation. We’ll talk about role play later; it frequently gets this tough customer back to earth in a hurry.
In almost every other situation, you are probably dealing with a person under significant and unwanted stress. No matter how long the pretrial process has been going on, it’s now your witness’s turn on the bull’s-eye. You have a big job on your hands—getting her in shape to be deposed. If you project confidence, no matter how nervous you are, you will be doing a lot for your witness and her anxiety. The best way to have this self-confidence is through preparation. You are not the star of this show—the witness is. If you have prepared yourself and your witness, it is likely that you will have little to do at the actual deposition after identifying yourself on the record. First you prepare yourself, and then you prepare your witness.
So what should you do to prepare? Start by asking yourself this question: What is the case about? Sort through the blizzard of documents, emails, legal memos, witness interviews, and motions. Then test yourself and your approach by explaining the case to someone (your spouse, for example). What happened to cause the lawsuit, why did the plaintiff sue, how does she plan to present her case, and how do you plan to defend the case? If you can do this without legal jargon (juries don’t understand it either), you’re off to a good start.
Once you’ve done that, focus on your witness. What documents is the witness likely to be seeing and why? Make a list and start collecting your work copies.
What have other witnesses said about this witness? Have you or a paralegal extracted all such testimony or documents? People often remember the same things differently, and that’s to be expected, but you don’t want to find this out for the first time during the deposition. If you do find a significant inconsistency between this witness and others, either in the deposition or in the documents, talk to me or another, more seasoned litigator about it.
Are you sure the witness is your client? If the witness is an employee of our corporate client, then your communications with him are very likely protected because he is an agent of the corporate client. This is seldom a problem in depositions of corporate employees. But what are you going to do if, during the prep session, the employee tells you that he is not comfortable talking to you because you represent the company and he knows that they are looking for reasons to get rid of people? We don’t need to digress now to a consideration of various hypothetical ethics issues that could arise. Something like this is, in my experience, extremely rare. But if it happens, stop the prep session and “call home” for advice. We’ll discuss some of these issues in another conversation.
If the employee witness is a codefendant and the firm is representing both the defendant employer and the defendant employee, the considerations are somewhat more complicated. If you want an example of how complicated joint representation of employers and employees in litigation can get, take a look at Felix v Balkin, 49 F. Supp. 2d 260 (S.D.N.Y. 1999). You might also look at Lawrence J. Fox’s article “Your Client’s Employee Is Being Deposed: Are You Ethically Prepared?”, 29 Litigation 21 (Summer 2003). In this case, the firm was representing Saks Fifth Avenue and several supervisors who were defendants in a sexual harassment case brought by a group of employees and focusing on one particular supervisor. One of the other supervisor defendants later brought her own sexual harassment suit against Saks and the particular supervisor. The entire firm was disqualified from all of the pending sexual harassment suits. If your witness is in fact a defendant, go find out if a written advance waiver of potential conflicts is in place. If you want to know what should be in it, you can look at ABA Formal Opinion 93-372. You and I can discuss the whole subject of advance waivers of potential conflicts in another conversation, but if there isn’t one in place, let me know and I’ll go have a talk with the partner in charge of this case.
If the witness is not your client, do keep in mind that everything you say (or suggest) to him is fair game for discovery.
Where are the problems in the case? If you don’t think there are any, look again. Sometimes the problems may be lurking in unexpected places. Emails are a prime example. There is almost always one or more emails that are problematic from a substantive perspective or simply from their tone. Employment files and evaluations are another fertile ground for problems. When I was relatively new at this, my witness’s employment files, complete with the résumé he submitted when applying for the position, had been provided in discovery. There were no apparent red flags in these documents. After a very long day of preparation, I showed the witness the materials and asked if there was anything in there that we should talk about. It seemed like fairly straightforward information about his education and work history. His confident response of “Oh no, nothing at all that we need to discuss” allayed any concerns I might have otherwise had. As the deposition began, the opposing lawyer was going through the work history on his résumé, which is a fairly standard line of inquiry. When asked why he had left the position before joining his present employer, he blithely responded, “I was fired.”
The lawyer then proceeded to explore the reasons for this firing. When all was said and done, the witness had a fairly good explanation that we could work with. At the very next break I could arrange, I suggested to him that it would have been helpful had he mentioned this when I had asked if there was anything we needed to talk about on his résumé. His very matter-of-fact response was, “Oh, there was no need at all to talk about this. My boss who fired me was a complete idiot.” I’ve never forgotten this episode, and I’ve never made that mistake again.
Once you’ve thought through these issues, make your outline for the prep session. (Not notes—an outline.) If you don’t, you’ll probably forget something, and it might even be important. Also, if you’ve gone through the work of preparing your own outline, you probably will be able to actually have a conversation with your witness rather than reading from notes. It makes you look organized and in control, and, most important, it reassures your client. Ideally, you use the outline at the end to be sure you have covered everything.
Have you given your witness plenty of notice of the deposition and the prep session and made sure he knows approximately how long you think each will last? He will appreciate it. If you actually call him rather than just email him, you might find yourself in a conversation in which you can learn something helpful. Emails are so much a part of our life, but nuances you may sense in a conversation are lost in emails.
Did you plan the prep session for the day before or morning of the deposition? This is almost never a good idea. We live in a world of budgets with clients, and their in-house attorneys, appropriately concerned about the skyrocketing cost of litigation. I have a friend who identifes the witnesses that he feels are most important and flags them ahead of time for the client. He tells the client that for each of these depositions, he needs to budget for three days of witness preparation. The first session is devoted to basics—an overview of the case and having the witness give her side of the story. The second session reinforces the lessons of the first session and works through the chronology documents and potential problems in detail. The third session brings it all together with role play. Not every deposition may require such thorough preparation, but trying to fit it all into one session is probably not a good idea. There is a lot of information for even a sophisticated witness to absorb in one session. You may not need three full days, but you almost always need more than one session, even if the second is only to brush up, address questions, and reinforce the main themes. However many sessions you decide are right, have them in a place where you and the witness will not be distracted.
Sit Down with Your Witness
Once you have prepared yourself, it is time to actually sit down with your witness. The first thing you should do without fail is to place your cell phone, BlackBerry, and iPhone somewhere out of your reach. The witness will greatly appreciate your complete attention. Having done that, get to work. First and foremost, alleviate stress for the witness. Explain what the case is about and do it without using excessive legal jargon. Explain the adversary’s theory of the case, your side’s theory of the case, and where the witness fits in all this. Don’t assume your witness knows this. Explain what is going to happen at the deposition because the witness probably has no idea. This is basic stuff but very important. Start with where it will be, what time it is scheduled to begin, and where you will meet ahead of time. Describe the likely room (conference room), who will be there, and what each person will be doing: The court reporter will administer the oath (explain what this means) and transcribe testimony; the opposing attorney will ask questions and show documents; and you will protect the witness. (Save the speech about do’s and don’ts for later.)
Ask the witness whether she has anything she wants to talk about before you get started on the more detailed discussion of the preparation. This is where you may find out what the witness is worried about. Whatever it is—listen, then talk about it with her and not at her.
Now that you have given your witness the basics of this process and a chance to absorb them, give a bit more detail of the actual deposition. For example:
- You might object, but there is no one to rule on objections, and unless you instruct otherwise, the witness is to answer the question. (Witnesses are completely mystified by this unless it’s explained.)
- It is perfectly OK to have met with you. (If you don’t explain, he may think he has been caught doing something wrong by meeting with you.)
- Explain some of the objections you might make. Do not
just recite them—explain them using a minimum of legal jargon.
Ask the witness what she remembers about the facts of the case. That’s right—before you give the witness the long (and hopefully not too confusing) list of deposition do’s and don’ts and before you wade into the intricacies of the documents, ask the witness a simple question, “What do you remember about all of this?” It’s what witnesses want to do. It gives them a sense of some modicum of control over this strange process, and it gives you a chance to find out what should be discussed in more detail and perhaps what does not need more discussion. The witness should be doing most of the talking here. Remember that a good litigator must be a good listener. Try to avoid interrupting or correcting the witness. This is the witness’s chance to let it all come out. Do this even though you may have had prior discussions about the case with the witness.
Of course, an alternative that may seem tempting for you is to describe the overview of the case in a way that communicates (suggests) to the witness what her memory should be. I suppose you’re understandably anxious about how this deposition will go, and you don’t want bad testimony to come out because you may think you’ll be blamed for it. That’s understandable, but you have ethical obligations that are far more important than any case could ever be. Don’t take this road—it leads you to a very dangerous ethical swamp. There is, of course, no bar against presenting the testimony in a manner that is most advantageous to your client. Indeed, it is your obligation to do so. But never forget that there is the truth and then there is tampering with the truth.
Substance of the Deposition
With these tasks accomplished, it’s time to get into the substance of the deposition. This almost always involves documents. But what documents do you review with the witness? A deposition question about what documents the witness reviewed seems to cause more colloquy and acrimony at depositions between counsel than it deserves. The disagreement generally follows the lines of the examining attorney arguing that he or she is entitled to know what documents the witness used to prepare. The defending attorney argues that this disclosure will invade the attorney-client or work-product privilege, because disclosure essentially identifies what documents he or she thought were important and therefore discloses the content of the discussion.
So can the opposing counsel legitimately inquire as to what documents the witness has reviewed to prepare for the deposition? It depends. See, for example, Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985), which holds that an attorney’s selection of documents for a deponent to review prior to testimony is protected as work product, but recognizes that an examining attorney might be able to lay a foundation by meeting the three conditions of Federal Rule of Evidence 612 for identification of documents that the witness reviewed for the purpose of refreshing her memory before testifying. A similar case is Shelton v. American Motors Corp., 805 F.2d 1323, 1329 (8th Cir 1986), which cited Sporck and held that an in-house attorney’s identification of documents for the defense of a case was protected by work product. On the other hand, there is Elrich v. Howe, 848 F. Supp. 482, 493–94 (S.D.N.Y. 1994), which held that under Federal Rule of Evidence 612, if a witness reviews a document before giving testimony to refresh her memory for the purpose of testifying, that document must be identified).
Worrying about this issue, the ensuing arguments on the record, and the instruction not to answer—all at the beginning of the deposition—strike me essentially as time wasters. Unless there is a really good reason, when I take depositions, I generally don’t ask a witness what documents he or she reviewed to prepare. In large part, this is because I cannot recall ever learning anything significant when I did use the time to ask. Generally, there is no mystery to anyone as to what documents are in play by the time depositions start. Your question to yourself should be, “How does it hurt to have the witness simply answer this question if asked?” If (as is almost always the case) answering the question does not hurt, then why make an issue? Otherwise, starting the deposition off with an argument between counsel probably serves no purpose.
Dos and Donts
And what about all the do’s and don’ts you want to be sure the witness knows? This is where things get tricky. A lecture to the witness with a list of dos and donts that are often internally inconsistent (we’ve all got our own favorites) is probably going to confuse or, at best, overwhelm even the most sophisticated witness. There is a veritable mountain of literature on the subject of depositions and lists of dos and donts. It would be hard for you to keep them all straight and almost impossible for a witness hearing all of this for the first time to do so. With that in mind, why not discuss only a few of the most important with the witness? Here is my short list of advice to give a witness. Remember to stop after each one and discuss with the witness—you’re having a conversation, not giving a lecture.
- Tell the truth. Not only is it the legal, right, and moral thing to do, but not doing so will invariably lead to disaster. (You, as an attorney, also have a very clear ethical obligation here to ensure the witness does so.)
- There is no legal or moral obligation to do anything more than tell the truth, the whole truth, and nothing but the truth. This means answering directly, honestly, and concisely the question that is asked. There is no obligation to guess, speculate, or help a questioner who doesn’t ask the “right” question. (Sometimes this can be clarified by telling a witness that she is to answer as to what she knows from the witness’s own involvement in the events or what the witness was told. Nothing more.)
- This is not the time for us to tell our story our way. (Unless you make this clear, many witnesses will not understand this. A misunderstanding leads to the witness volunteering information, arguing with the opposing counsel, etc. None are good.) If you are tempted to tell the witness something like “Don’t volunteer anything unless you think it will help,” resist that temptation. Ask yourself, “Am I really confident that this witness can make that decision on the spur of the moment and do it well?” This is a lot of responsibility to place on any witness.
- It is perfectly permissible not to remember something if in fact you do not. (Some witnesses are very troubled that they can’t remember something. This leads to guessing and speculating.)
- Becoming angry, sarcastic, or humorous is almost never a good idea (for the witness as well as for the lawyers).
- If you do not understand a question, it is perfectly acceptable to say so.
- You should attempt to stay at a pace that is comfortable for you. Pause and think before answering, especially when there is an objection. Ask for a break when necessary.
- Be prepared to have prior answers summarized (sometimes not quite accurately) in another question. Clarify the prior answer if necessary.
- You might be asked hypothetical questions. (Explain this process and the likely objections. Hypothetical questions seem to be a significant source of discomfort and confusion to witnesses if they are not prepared for them.)
Your client is probably expecting to role-play and wants to do it to practice what he is actually going to have to do. This is a natural urge and a tension reliever.
Be careful to avoid these pitfalls:
- Don’t destroy the witness’s confidence with a brutal cross-examination.
- Are you the best person to play the role of your adversary?
- Role play presents a temptation for suggestive coaching that you should avoid.
- Role play is never a good idea with a non-client.
Be sure to accomplish these goals:
- Relieve some stress for your witness.
- Get a feel for how the witness is likely to handle the actual deposition.
- Go over what you think may be some rough spots.
- Review the way documents are marked and used, and some objections.
Is there anything in the witness’s background that you should talk about (fired from previous jobs, for example)? It’s an uncomfortable discussion, but it will be a whole lot more uncomfortable, as in the situation I discussed earlier, if your adversary does it for the first time. You may want to discuss your witness’s use of social media and its availability to the public (i.e., the opposing lawyer).
Ask yourself (and the witness) if another prep session would be a good idea. If he says he doesn’t need one, you probably should do it anyway. And call your witness in a day or so and ask whether any questions have come up since the prep session.
Some simple things: Be sure your witness knows where to be and when. Remind him to bring nothing. Allow ample time for problems. A witness who comes late because of traffic is likely to start the deposition a bit flustered. That’s easy to avoid. If the deposition is to be videotaped (which you will have already discussed with the witness), take a look through the camera at your witness before the questioning starts.
The deposition itself is where your hard work will pay off. But it creates its own tensions too. Are you concerned that the other lawyer may be a complete jerk and you won’t be up to the task? If things do get out of hand, what do you do? It’s not likely, but think a bit ahead of time about what you will do if this does happen. If this is a federal court case, review Federal Rule of Civil Procedure 30(d)(3). If you are convinced that the examining attorney’s conduct is so far out of bounds that you can convince a judge that the deposition is being conducted in “bad faith or in a manner that unreasonably annoys, embarrasses or oppresses” the witness, you can suspend the deposition (not terminate it) while you file a motion to terminate or limit the deposition.
Before doing this, be sure you know something about your district judge or magistrate judge. What is his or her practice? Some readily accept telephone calls from depositions, but others hate them. Have the telephone number with you. If I were going to suspend a deposition, I would want to be sure there is a record of significant and persistent misbehavior and my appropriate objections. I would want to be sure that the conduct is well beyond that of a hostile cross-exam. Finally, I would not suspend a deposition without at least attempting to get the judge on the telephone.
What objections are you going to make? It used to be that speaking objections were common. Those would take the form of instructions to the witness such as “I would caution the witness not to guess or speculate” or “Objection, misstates the witness’s prior testimony in which he stated [here, the defending attorney would repeat the testimony that he or she wants witness to give].” There were also what I thought of as “creative” objections. One of my all-time favorite creative objections was “I instruct the witness not to answer that question; it’s full of fishhooks.” These sorts of objections had the regrettable effect of turning a deposition into a jousting match between lawyers as much as a search for discoverable information. The federal rules and now many state rules were designed largely to put an end to this behavior. Carefully read Federal Rule of Civil Procedure 30(c)(2). Here’s what it says:
Objections. An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
Remember that, and follow it in your objections. If you do, you’re going to protect your witness quite adequately while not contributing to the deposition becoming a lawyers’ show rather than the witness’s show.
So there we have it. I’ll bet I didn’t tell you anything that you didn’t already know. I just helped you to put it all into an organizational framework of manageable size.
Preparation is everything. Once you’ve done your work to prepare, you’re almost guaranteed that the deposition will go as well as it possibly could go and that you have done everything as a lawyer that you could do. You’ll find that this is a very satisfying feeling.