June 01, 2018 Sidebar

How to Prep a Witness for a Deposition

Deposition disasters happen, but here's a checklist that can help the odds.

Kenneth P. Nolan | The author, a senior editor of Litigation and the author of A Streetwise Guide to Litigation (ABA 2013), is counsel to Speiser Krause, Rye Brook, New York.

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I was young and excited. I was finally handling a deposition on my own. A law school pal referred her cousin who was injured at Kennedy Airport when he drove a vehicle into the wing of a giant 727. Of course I took the case. I told you I was young. The theory was that the lights from the terminal were so blinding that my schlub couldn’t see the wing on the Boeing jet and ran into it, nearly slicing off his head. The engines on the 727s were mounted to the tail, so the wing had no definition, which was equivalent in my somewhat delusional rendition to a thin knife that my guy forgot to notice in one of the busiest airports in the world. Yeah, I was really young.

But I was ambitious hungry, and if I made a killing, Andrea would broadcast my brilliance to my other classmates who would refer cases, ensuring riches and fame. Hard to imagine, but I really believed that bunk. What’s the downside? I lose? Some kid was always bigger, smarter, more athletic. I didn’t appreciate then that Bobby Welsh, Gerard Conlon, and I losing a three-on-three basketball game was a touch different than having the judge or jury toss your case into the gutter.

My client, nice enough, had a bunch of stitches in his head, a concussion and a million other ailments caused when the roof of the tug sheared off when it struck the wing. God was good, and after a few months he was back on the job. He worked for one of the contractors so we could sue the Port Authority of New York and New Jersey, which operated the airport. The Port then third-partied in his employer, so there were essentially two defendants when I started suit sometime in the late 1970s.

I took Polaroids of his scars, detailed his debilitating migraines, and had my investigator schmooze his way onto the tarmac (can you imagine) so I also had photos of the way-too-bright lights all shining in his eyes which made a wing span of 108 feet disappear like magic. I sought guidance ad nauseum from the partners, and prepped my client endlessly over two days. Meticulously, I went through my checklist—tell the truth, don’t guess, wait until the question is complete before answering, don’t volunteer info—until his version sounded logical and empathetic, at least to me.

The big day arrived. At a white-shoe firm in Manhattan, the youngish attorney representing the Port Authority was professional and polite. The third-party defendant attorney was some harried, disheveled insurance lawyer with papers spewing out of a file that he probably just opened on the subway downtown.

The Port Authority lawyer spent two hours covering the topics listed on his neat yellow pad. Not bad, I thought, since he didn’t badger my client and was always respectful and patient. The insurance defense guy began in a loud and demonstrative voice and was all over the place, delving into details about family, education, work, driving history. He’d jump around, interrupt the answer, and sarcastically blurt: “Really, you’re telling me that you. . .” I objected constantly and meekly, with my adversary staring at me with a shocked and hurt look, “Counselor, I’m just trying to find out what happened. You know that I have hundreds of files and didn’t get this one until yesterday. Gimme a break, will ya.”

Whether I acquiesced or refused his entreaty didn’t matter because he’d just go on as if he never heard me. Hours passed until my client, exhausted and perplexed, finally admitted that he had worked with 727s plenty of times: “Yes, hundreds, maybe thousands . . . Yeah, those lights are bright, but they’ve been there for all the years I worked at Kennedy…You’re right, I probably should’ve been more careful.”

I never dreamed of being a lawyer so I wasn’t surprised that I now doubted my choice to leave teaching for Speiser & Krause. I knew I’d never be the legal equivalent of Lebron James or Steve Jobs, but I always believed if you worked your tail off, you’d be fine. Now, not so much. I only recovered from my despair a few weeks later when my mentor laughed: “What did you expect, it’s a dog case. You knew that, didn’t you?”

Thankfully, this nightmare ended when the case settled for a minor amount that even made my client smile. I learned lots from that miserable experience: Don’t judge lawyers on whether their shoes are shined; litigation is time-consuming and expensive; money and glory are not easily earned; effort is important, but clear liability is really important. Most of all, I realized that I knew little about prepping a witness. Over the decades, I’ve had other instances where my client admitted fault or revealed damaging information that he swore never occurred. But I figured out an effective method of prepping a witness. Won’t work for everyone, but might for you.

Prepare, but don’t overprepare. Sitting with your client for endless hours and going over every possible question is counterproductive. If you provide too much information and direction, inevitably, the witness will either sound robotic, or become confused and defensive. Don’t demand excellence when only credibility is required.

Eventually, I discovered that less is more. All witnesses, even those who have been deposed previously, are petrified. This includes educated executives so very concerned with their image. Explain the purpose and each party’s intent. “The defendant wants you to admit you’re fine, that your injuries are healed; you’re in no pain and you have no permanent disability.” Give them confidence; put them at ease. I always commit a venial sin by telling them that whatever they say, and however they say it, has little bearing on the outcome.

Make sure they know basic facts—date, place, time, etc. Then focus on the essential issue in the dispute—liability, notice, damages, whatever. Review this testimony in general terms. Listen, make suggestion or two, ask a few questions that your adversary will pose. Don’t badger, yell or try to be Perry Mason. Then change topics—discuss family, sports, weather. Eventually return to the crucial issue to ensure that your client can answer confidently and consistently. A terrified, tentative witness is disaster. He will be more concerned with trying to please you, or worse, your adversary, than telling his story accurately.

Have a goal. Is it to obtain information? To demonstrate the goodness and veracity of your client? To punch holes in the expert’s opinion? To prove that the witness is a lying SOB? Before you serve the notice, think about it, plan for it.

Don’t insist on what they say or how they say it. Make suggestions, but allow your witness to use her own words which increases credibility and sympathy. Attention spans are limited, especially in this twitter era, so concentrate on liability if that’s the linchpin. If your witness can’t remember his wedding date, it’s not the end of the world. If he can’t remember if the light was red or green, well that’s trouble.

I assure them that if they’re answering improperly, I will stop the deposition and drag them into the hall. But if I don’t, I explain, they’re doing fine. On the rare occasion that I had to stop the deposition, I never paid attention to the admonition: “Mr. Nolan is interrupting the testimony so he can tell his client what to say.” Never came back to bite me.

Tell the truth. Sounds simple. But we live in a culture where we’re taught not to complain. Big Girls Don’t Cry, sang the Four Seasons. We’re conditioned to hide our pain, sickness. We respond “fine,” or “better” to questions of our health. When representing an injured party, insist that your client be candid and admit pain, disability, fear of being dependent on others. This one time they must detail—without exaggeration—all their damages. More of my clients minimize, rather than embellish, their injuries.

No case is without problems and no witness without fault. Uncover the peccadillos—the arrests, bankruptcies, marital problems. Scour Facebook, Instagram, the internet to be prepared when your adversary shows a video of the grieving widower dancing on a table three months after he lost his beloved wife.

Admit fault, weakness, and then explain. “Yes, I was dancing at the wedding. It was my cousin’s and I needed to laugh and have fun for a few hours. But that night, I went home alone and woke up the next morning alone….” Jurors don’t believe someone who is absolutely certain about everything. The client should concede that she’s unsure exactly how fast she was driving, “but I wasn’t speeding.” If your client needs a box of tissues during testimony, it better resonate with the jury. To swear how your life is ruined because you have a dropped foot and have to wear a brace, as one of my clients sobbed, didn’t even convince me. As one juror said with a shrug: “My uncle had a stroke, couldn’t do much, but still never complained.”

Be tough. Sometimes, your adversary will try to intimidate you, bully you, be aggressive in questioning and manner. Remain calm, but respond. Insist on decorum, make a record, call the judge—all in a professional manner. We live in a graceless age where political animosity has permeated entertainment, sports, everyday life. You’re better than that.

Kenneth P. Nolan

The author, a senior editor of Litigation and the author of A Streetwise Guide to Litigation (ABA 2013), is counsel to Speiser Krause, Rye Brook, New York.