In a client’s deposition, investigative testimony, or government interview, there are few things that make an attorney wince more than when the questioner asks about facts or circumstances of which the attorney is unaware. Or the client provides a version of the story the attorney has never heard.
Worse is the client who fills in recollection gaps with anything from guesses to modest embellishments to outright lies. And not to be forgotten is the client who reveals having tampered with or deleted documents, emails, or other evidence.
These things happen. And when they do, we as attorneys will not panic and instead will deal with it with the professionalism, ethics, and care required.
But it’s even better to avoid such occurrences. Effective witness preparation—“prep”—helps to ensure that those happenings are rare.
Thorough preparation is time-consuming, emotionally draining, and (sometimes) costly. But it is time well spent. Strong deposition testimony can strengthen summary judgment motions, cause opponents to be more inclined to settle, or both. Solid interviews or client testimony that is credible and does not support the government’s theory may prompt a prosecutor or regulatory agency to close an investigation. Effective prep helps bring about the best possible result.
Witness preparation varies depending on the type of testimony—litigation deposition versus government or regulatory agency interviews or testimony. This is for three reasons.
First, the questioner’s goals, and thus the questions, will differ depending on the context. Litigation depositions are often, but not always, designed to score points by obtaining facts and statements that can be used to influence a finder of fact. Investigative testimony is usually designed to further an investigation and obtain as complete an account as possible.
Second, the materials available to use in prepping the client will differ. Litigation depositions typically occur following extensive document discovery. By that time, the client’s emails and other documents will have been reviewed and, hopefully, categorized for relevance and privilege. If the client is associated with significant documents in the case, they can be identified well before the prep sessions start.
The issues about which the client will be asked may be clear. It is more difficult to prepare for government testimony. You likely will not have a clear understanding of the scope of the investigation or the testimony. The investigating agency probably will have obtained information from a broad range of sources unavailable to you. Indeed, you should always assume that the government knows significantly more about the matter than you do and will use that information advantage to test the accuracy of the client’s testimony and the client’s candor and credibility.
Finally, the client’s exposure can vary. If the Department of Justice is interviewing the client, the case may concern potential criminal conduct, but even agencies that enforce civil laws can and do refer matters to the Department of Justice, and there is a risk in civil investigations that the client might testify about behavior that leads to such a referral. There is also always the risk of criminal liability under 18 U.S.C. § 1001 for making false statements. So consider whether the client has potential criminal exposure and whether to assert Fifth Amendment rights not to testify, even if the subpoena came from an agency that has only civil enforcement powers.
Regardless of those differences, some basic goals must be accomplished.
First and foremost, do no harm. The primary goal of witness preparation should always be to produce testimony that is truthful and that helps your case or, at least, does not hurt it. That also means making the determination that there are instances when truthful testimony can only hurt, and cannot help, the client.
Even if the client is a minor witness or one who has nothing to hide, it is essential to dedicate significant time to witness prep. In fact, this is especially true for minor witnesses. Do not let the client make herself interesting by embellishing the narrative, testifying as to matters that she does not recall, or avoiding the question because the answer is embarrassing or might be harmful from her perspective, when objectively it is not.
One way to achieve that first goal, and avoid any other pitfalls, is to develop the client’s confidence about her account of the events, especially what she actually recalls and what she does not. To do that, understand the client’s narrative. Make sure it is supported, or at least not contradicted, by the documents, other testimony, and any other evidence in the case.
This is particularly critical in the context of government interviews, when there is an increased likelihood that the client will be asked about documents unavailable to her or to you. In those circumstances, working with the client on timelines and key documents will help her respond calmly and reflectively. Practicing testimony minimizes the urge to fill gaps and the risk of fabrication. It also allows the client to learn to listen to questions, discern what is asked by them, and respond calmly. And that helps to reduce the chance that the client will be surprised by some questions, which could lead to a panicked, inaccurate response.
Still, most witnesses will find testifying to be awkward and unusual. That’s understandable. Formal interviews and testimony do not resemble everyday conversation, in which there are interruptions, people may signal answers with facial expressions and uncertainty with body language, and so on. By teaching the client how to approach testimony, you can get in front of common witness mistakes, including the use of unhelpful throat-clearing phrases, such as “to tell you the truth” or “honestly,” both of which suggest exactly the opposite.
If the client potentially has engaged in problematic conduct, known or not known by the questioner, a practice session will also help to determine which questions and potential responses may risk implicating the client and how best to address them. In some cases, the prep session could cause you to decide not to let the client testify or to assert the client’s rights under the Fifth Amendment.
A thorough prep session is also strategically important to allow you to identify which types of questions might call for information protected by privilege or are otherwise objectionable. By identifying such issues ahead of time, you will be on the lookout and ready to interject quickly when they arise.
Before sitting down with the client for witness prep, understand both sides’ theory of the case, as best as possible, and the client’s role in any transactions or events. If appropriate, ask the party that has requested the testimony or interview what areas it will cover. Although government attorneys do not have a duty to tell you the purpose of the interview, they often will share, at a high level, what they wish to address, to make the eventual conversation smoother and more productive.
Recognize that your understanding of the client’s exposure will likely evolve as you go through the process of witness prep. If you have not already done so, have a lengthy discussion with the client in advance of the actual preparation session to determine everything she knows about the relevant facts that will be the subject of the testimony. You should also attempt to learn from counsel representing any other parties or witnesses, possibly pursuant to a joint defense agreement, what questions their clients were asked, what documents they were shown, and generally what they know.
Carefully review all documents that the client has produced. Moreover, if you are representing both an entity and individuals employed by that entity, focus on documents that were in each witness’s custody for each witness’s prep session. If the volume is large, run searches for key words and issues or review all communications during significant periods to ensure you are not missing anything important.
If the client’s employer has separate counsel and is not adverse, then perhaps the employer will, on requestion, provide you documents relevant to the client’s testimony. In particular, get all documents that were in the client’s possession, whether in hard copy or on her computer, as well as all emails she sent, received, or was copied on.
Once you have assessed the issues likely to be raised during testimony and reviewed all the documents, prepare an outline of topics to cover with the client and questions you want to ask. Include a section about the client’s background and work history, her role at the company during the relevant time, and the major issues of the case. Determine whether a chronological outline or an issue-based outline will work best.
Key documents identified in your review should be integrated into the outline. The documents can be printed and put into tabbed binders for easy access during the prep session. Do not expect to follow the outline rigidly. It serves mostly as a guide to ensure that you cover the topics and that each document is linked to a specific topic.
Generally, don’t assign the client any preparatory tasks. Discourage her from doing her own research. All preparation should be done in your presence or at your direction, to protect those discussions under the attorney-client privilege and to avoid any suggestion that the client coordinated with other witnesses on a story. Affirmatively tell the client not to review any documents outside the presence of counsel because the questioner is entitled to ask about them.
If possible, your first client prep session should take place two to four weeks before her scheduled testimony. Expect to spend twice the amount of time preparing for testimony as the client does actually testifying. Some clients will require more, some maybe less. The first session will give you an opportunity to see how much time will be needed to prepare the client sufficiently.
Arrange to meet with the client one last time a day or two before going into testimony, and briefly the morning of the testimony. Remind her about answering techniques, go over key areas of testimony, and try to relax her and build her confidence.
Sometimes it is just not possible to meet in person a few weeks before the testimony date. In those cases, discuss the factual background and logistical issues in shorter sessions by videoconference or telephone, and then hold in-person prep sessions immediately before the testimony.
To avoid distraction, hold the prep sessions away from the client’s office. If you must meet at the client’s office, use a conference room that is removed from her computer and other office activities. Have at least two attorneys present at each prep session: one to take the lead in asking questions and the other to take notes, keep documents organized, and ask follow-up questions.
Notes are important to help keep the client’s recollections consistent during later prep sessions. If the client is to testify about conduct involving a company where she is employed and there is a joint defense agreement in place, consider inviting company counsel to join for part of the session to provide the company’s view on any facts or issues.
When it comes to conducting the prep session, every attorney has his or her own style. Here is one approach:
First, using the outline and binder of documents, go over the pertinent facts and circumstances with the client. Do not try to enhance the story or prepare a better or false version of events. It is unethical and impermissible to encourage the client to lie under oath. But you do want the client to be an effective witness, which means that the account of events she tells should be consistent every time she tells it. She will be consistent only if the version is her own.
To achieve that, it is helpful to have the client first answer a question without referring to a document, and then see how her answer evolves or expands once she is shown the associated documents. If you decide not to refresh the client’s recollection about certain issues, then asking the question without referring to a document gives you that option.
Be especially careful that the client has a specific recollection and is not just filling in the gaps with what she thinks she did or her usual practices. Remember that you are not trying to trick the client, but rather looking for which parts of her recollection are most firmly rooted in her actual memory and which appear only after her recollections are refreshed.
Determine what documentary or testimonial evidence might be inconsistent with the client’s understanding of events. Explore those areas systematically. If appropriate, share with the client additional evidence to help refresh her recollection about the order of certain events, the people involved in those events, and other details.
The client’s recollection of events need not perfectly match the recollections of other witnesses. Witnesses are human. There likely will be inconsistencies between their memories. But you want to be confident that when the client’s version does differ, she is certain about her account.
Clients sometimes are reluctant to share aspects of a story that are embarrassing or that portray them in a bad light. It is common for a client to think he or she can get away with telling his or her lawyers just enough of the details, without sharing the full story. Sometimes clients will outright lie about what happened or what their motivations were.
If you find yourself with a client whose rendition of events does not make sense or whose stated motivations do not line up with what is suggested by the documents or by comments of others who are involved, press the client hard about those areas.
To get to the truth, you might even need to confront the client directly with the flaws in her testimony. Some come clean only when they are shown a document that directly contradicts their testimony or if it is demonstrated that another witness has a different version of the events.
From the outset, impress upon the client that, even if the underlying conduct is only a civil offense, it is a crime to give false testimony during a civil government investigation. Emphasize that the client can greatly increase her risks and exposures by lying or fabricating. Explain, and take comfort, that those specific discussions between you and her are protected by the attorney-client privilege.
As this may be the first time the client has ever testified, give her the lay of the land. Describe the physical setting for the testimony. Explain who you expect will be present. Describe the role and conduct of the court reporter. Show the client a sample transcript. And tell the client that she will be sworn in at the outset. For government testimony, explain that most interviews begin with five or ten minutes of boilerplate explanations, so that the client knows beforehand what it means.
Go over some ground rules with the client. Caution her that giving testimony can be exhausting. Pay attention during the prep to signs of the client’s fatigue and loss of concentration. Share with her that you will ask to take breaks when necessary on the day of testimony or interview.
Explain that there will be limited or no opportunities to consult with counsel, and almost never while a question is pending. Stress that the client should tell the truth at all times and should not speculate, and that it is perfectly permissible to not remember something. Tell the client to make sure she fully understands what is being asked and that it is her right to ask for clarification.
Once you have finished learning the client’s account of the facts, you should do it again in an organized question-and-answer role-play session to replicate testimony conditions. Step out of your role as necessary to provide suggestions. Make sure that you are comfortable with the client’s statements.
You may also need to step out of your role if the client is not being consistent with what she previously told you. It is typically best to do this by asking her about her earlier recollection in a neutral way, so as not to influence her to revert to her previous answer automatically. Even the most well-meaning witnesses may change their recollections as they get deeper into the preparation process.
If the client has not testified before, go over the initial, generic questions she is likely to be asked, such as her education and employment history. This also provides a low-pressure way for the client to use familiar material to become comfortable with answering questions and to begin practicing an appropriate response technique.
Once you have gone through the entire story in a Q&A session, you will have identified the areas that are most sensitive for the client and require additional attention. You may need to go over some areas many times before the client is comfortable discussing them in a testimonial setting. Also have the client practice her response to the question of how she prepared for the testimony so that she does not accidentally provide privileged information.
With that behind you, the essential core of prep is teaching the client a testimony response technique. The client should be instructed and trained to routinely
These techniques give clients the tools they need to effectively approach testimony and prevent them from getting into a conversational rhythm with the questioner.
As you role-play, identify the questions or topics that may prompt you to object. The purpose of objections differs depending on the context. In a deposition setting, the main goal is to preserve the objection for the record. Typically, those objections will be succinct. They will, mostly or entirely, be ignored by opposing counsel. Explain to the client that, despite the objection, she generally will be answering the question.
There may be broader latitude in making objections during government testimony. There, the purposes may include ensuring that the questions are clear, are understood by the witness, and are devoid of assumptions, among other things. Advise the client to listen carefully to your objections, as they might indicate that a question seeks privileged information.
Civil investigative agencies, like the Securities and Exchange Commission, are growing increasingly intolerant of counsel’s interjections during testimony. In those settings, consider in advance under what circumstances you want to interject and under what circumstances it is fine for the client if you let the questioning proceed uninterrupted.
As part of prep, try to show the client all the documents that the questioners might present at the deposition or testimony if they are documents that the client saw, was copied on, or would have been expected to see or review in the normal course of business. That will avoid surprise, which could cause the client to provide a poorly thought-out answer. Second, that will allow you to make sure that the client’s explanations of those documents make sense and are consistent with what you know about the matter.
If, however, there are documents that would educate the client about certain events of which she otherwise would not have firsthand knowledge, generally don’t show them to her. Neither a deposition nor testimony before the government is intended to obtain information that the client does not know. A witness has to testify only about what he or she knows or remembers. Therefore, carefully consider whether you should show the client a document that she has not seen, especially if she would not naturally have seen it in the course of her normal activities or business.
As a general rule, testimony is not a memory test. And there is no obligation to refresh the client’s recollection. As an exception, there may be reasons it’s beneficial to the client to recall certain things. If you think the client’s credibility will suffer if she does not remember specific events or does not recall certain facts fundamental to her job duties, you may wish to refresh her recollection.
Sometimes certain events are helpful to a client’s overall story. If your client has decided to cooperate in a government investigation, you may want to refresh her recollection so that she can be more helpful to the government’s case. Documents are usually the best way to refresh someone’s recollection, but that process may be discoverable.
The government or opposing parties will probably ask about any documents the witness reviewed in preparation for the testimony. While in some jurisdictions, such information may be protected by the work-product doctrine, the questioner might have the right to seek to learn the basis for the witness’s recollection.
Another way to refresh the client’s recollection is through a chronological reconstruction of events. Again, consider potential consequences before doing so. For example, the client’s refreshed recollection may make her seem more important than you want her to appear and thus may lead to additional, potentially unhelpful, testimony.
Decide in advance when to “take Five.” Advising clients whether to assert their Fifth Amendment rights is one of the most difficult strategic decisions lawyers must make. For many clients, you will never reach that threshold. It will be clear that their involvement does not rise to the level of criminal conduct.
For clients who have potentially engaged in criminal conduct, the decision of whether to testify is often unclear. You and the client will need to consider the risks of testifying and how those risks balance out with any potential consequences, such as serving a custodial sentence and the publicity of a trial, among others.
Being deposed or testifying before the government can be daunting. Many clients will consider it among the most stressful situations in their careers. With preparation and guidance, however, you can make the process go smoothly and help your client give concise, confident testimony.
