Effective Deposition Preparation: Avoiding Sound-bites
Karen Kash Redden, M.S. WitnessWork®
For 23 seasons (1977-2000), Sixty Minutes (CBS) was a top ten rated television program. For five of those years, it was the most watched show on television. Year after year, Harry Reasoner, Diane Sawyer, Mike Wallace and their peers delighted viewers with questions that made the targeted corporate executives squirm. It made for compelling TV – the beads of sweat rolling off the forehead, the slight tremor of the hand, the collar that suddenly became too tight, and then, the inevitable “no comment.”
Eliciting a damaging sound-bite was the key to good entertainment for Sixty Minutes and the same strategy has proved effective in the courtroom. Good attorneys edit deposition videos to provide memorable sound-bites. High in entertainment value, back in the jury room these sound-bites may become the jury’s choice for the theme of the case. For example, in a fraud case tried in Federal Court in Tyler, Texas, at one point in his deposition the exasperated CEO of one of the defendant parties blurted out, “Whatever it takes to do the deal!” This guiding principle was entirely consistent with jurors’ preconceived notion that big companies will stop at nothing to close a money-making deal. Back in the jury room, they used the CEO’s “admission” to find for the plaintiffs and award them $9 million.
You can avoid the discomfort of sitting helplessly by while your witness destroys your case if you commit to a solid program of preparation before deposition.
Make No Assumptions
Don’t assume just because someone is the CEO of a Fortune 500 company that he will make a great deponent. For that matter, don’t presuppose that an entertaining and personable dinner companion will be persuasive on the witness stand. You must know, in advance, how your client will react to being questioned, especially on topics that he may believe to be irrelevant or sensitive. An executive used to having things move at his own pace may become impatient with an examining attorney who moves at a slower or faster tempo, and impatience nearly always is perceived as arrogance. It is important to teach each witness to approach each question carefully, without regard for the examiner’s style.
One way to avoid surprises is to involve your witness in discovery from the start. Interview him, ask what files he has, what he remembers, what others might have, where he would go to find pertinent information. Ask what he has at home, especially if he is retired. I recently worked with a witness who had already been through one deposition when he volunteered, out of the blue, that he had a file cabinet full of relevant documents at home.
But won’t my witness seem coached?
Jurors expect a witness to have met with attorneys, reviewed files, and thought about the issues. Despite oft-voiced concerns by attorneys, it is rare that jurors perceive a properly prepared witness to be too “smooth.” Jurors tend to rate as not credible a witness who is nervous, or who continually asks to have questions repeated, or who cannot respond to what seem to be forthright questions. An unprepared or ill-prepared witness can irritate a jury and nearly always is unpersuasive.
Thorough preparation is particularly important when a key witness is called adversely during plaintiff’s case. Jurors expect each witness to bring information to court that will help them make their decision. A witness who has been carefully shielded from problematic issues, who has little or no familiarity with case themes and who has not had the benefit of reviewing documents and otherwise refreshing his memory is seen as wasting their time. If the litigation wasn’t important enough to this witness to spend a few hours going over his files, why should jurors give him, or his company, the benefit of the doubt? Don’t miss an opportunity. An effectively prepared witness knows the case story and where he fits in.
A witness who has been only cursorily prepared and who has not had a chance to undergo a rigorous mock cross-examination is vulnerable to skillful questioning that may expose him to impeachment and threaten perceptions of credibility on the two or three points that matter most. A corporate executive who lacks appreciation of the themes that will guide the defense case can be cornered into admissions that will severely damage his company’s chances of prevailing at trial. A deposition ostensibly taken for discovery purposes quickly becomes the centerpiece of the opposition’s case.
I’ve always prepared my witnesses to say as little as possible, to answer “yes” or “no,” and to say “I don’t know” or “I don’t remember” if they are not 100% sure. What’s wrong with that?
First let me say that if a witness does not know the answer, the only response is “I don’t know.” Often a person in a position of responsibility in a company believes that he should know all the answers. This tendency is exacerbated when the questioning attorney implies by demeanor or tone of voice that for the witness not to know the answer would be unreasonable. When I work with a witness, one of our first goals is to help the witness define the boundaries of his testimony. I caution him that as a marketing person he will be asked about the science, and vice versa. He should not speculate, or rely on intelligence picked up in the hallway or around the water cooler. Persons who have been with a company for a long period of time or who have risen through the ranks are particularly vulnerable, as they have picked up a great deal of information along the way, some of which may not be accurate or complete.
On the other hand, I have encountered numerous witnesses – usually those who have come across poorly in depositions or at trial and who are now candidates for remedial work – who have used “I don’t know” as a way to avoid answering the tough questions. Jurors are quick to recognize a witness who appears to be stalling or disingenuous, and this problem becomes especially acute when a deposition is captured on visual media such as videotape or DVD.
When a witness does not present well on videotape, testimony that should have been inconsequential quickly becomes a thorn in the side. The opportunity to use the deposition proactively to reinforce and enhance important testimony vanishes. A low level employee perceived by jurors to be knowledgeable about an important and damaging fact can quickly be elevated to the position of de facto corporate representative.
Along these same lines, I often hear attorneys instruct their clients to “wait a second or two” before answering any question. A second or two gap while the witness makes sure he understands the question and formulates his response is not a problem when the deposition is recorded only on paper. It is when a camera is running that even a brief pause becomes troublesome. Any hesitation, planned or not, suggests that the deponent is making up an answer. While some witnesses can pull off a beat or two of eye contact before responding thoughtfully to a difficult question, the unprepared witness will appear to be procrastinating. The most credible responses flow easily and conversationally and this occurs when the witnesses is fully prepared on the topics and has had the opportunity, in advance, to consider how he will respond.
In short, jurors expect corporate executives to know what was going on in their companies and to be able to talk knowledgably about the issues at stake in the litigation. Allowing or encouraging a corporate executive to testify on the basis of his present memory is an invitation to disaster. If the witness doesn’t succumb to speculation, you are likely to get a deposition replete with “I don’t knows” and “I don’t recalls” and “I’m not sures” that can be stitched together to create a deadly sound-bite montage. Any good plaintiff lawyer will recognize the jewel he has – the transcript of an executive with selective memory loss. Equally damaging is the underlying message that you or the company lack determination and willingness to prepare a strong case for settlement negotiation or trial.
What about a short “yes” or “no” response?
While “yes” and “no” responses tend to reinforce the other side’s story, brief, declaratory responses can actually get your version of the story in front of jurors during cross-examination. As I explain to each witness, in the days before a deposition the attorney on the other side prepares an outline of the questions he wants to ask. If he has done his job properly, the testimony he wants to elicit is contained within each carefully crafted question. If the witness cooperates by responding with a simple “yes” or “no,” the attorney has a tidy narrative, interrupted only by the witness’ helpful affirmations, to present to the jury. If, on the other hand, the witness has been cautioned to use short, declaratory responses in responding to substantive questions, the number of useful sound-bites is greatly reduced.
Is the fact that my witness worked with a trial consultant discoverable?
Although communication consultants are playing an increasingly more visible role in dispute resolution, only a handful of opinions address the discoverability and/or admissibility of information relating to this work. Stan Davis and Tom Beisecker’s 1994 article in the American Journal of Trial Advocacy (“Discovering Trial Consultant Work Product: A New Way to Borrow an Adversary’s Wits?”) is certainly one of the most comprehensive reviews on this topic. Davis, an attorney, and Beisecker, a litigation consultant, base their analysis on the work product doctrine and the attorney/client privilege.
More recently (2003), the United States Court of Appeals for the Third Circuit issued an Opinion that the work product of a non-testifying trial consultant was privileged and subject to very limited discovery, if any. Although the issue is far from closed, the Opinion provides a strong basis for arguing work by trial consultants done at the direction and under the supervision of counsel is not discoverable.
How much time must you spend with my witness?
The rule of thumb is three hours of witness preparation for each hour of anticipated testimony. The problem with this “rule” is 1) in many jurisdictions it is difficult to predict how long a deposition or trial testimony will go; and 2) witnesses vary greatly in the amount of time and effort they need to invest in order to be comfortable and confident. I have found the best approach is to schedule three or four hours with a witness, to begin preparing for his deposition or trial testimony. The time can be spent productively, with the first fifteen minutes or so reserved for a quiet conversation where I explore any concerns and previous experience and the remaining time spent in exercises that allow assessment of the witness’s readiness and ability to testify persuasively. After this first session, an educated assessment of how much additional time will be needed can be made.
How do I introduce you to my witness?
In most instances, it makes sense to introduce me as a member of the trial team who specializes in helping witnesses get ready to testify. There is no need for fabrication; nor is there any reason to educate the witness as to my status as a communications professional.
Why can’t I or one of my associates prepare my witness? Why should I hire a consultant?
As a lawyer, your expertise and your focus are on the legal issues. A person trained in communications brings different, complementary skills to the table. Especially if you have a long history with a client or a social relationship, you should consider bringing in an objective expert. Even if you don’t have a personal relationship with your client, you will still want the benefit of a third party to evaluate and assist in preparation.
Is it important for the witness to look into the camera during a video deposition?
The advice given on this issue differs among communications experts. My personal belief is that the most effective videotape presentation begins with the proper setup. It is your responsibility as the attorney defending the deposition to work with the videographer to ensure that your witness’ testimony is recorded in such a way that it does not have a negative impact on his credibility. [For a more detailed set of instructions for effective deposition setup, see “Considerations for Effective Video Depositions.”] Generally speaking, whether to face the camera or not depends on the status and experience of the witness. An experienced expert witness may be very comfortable looking directly into the camera, while a company research scientist may have a great deal of difficulty facing an impersonal lens. Practice in front of a video camera will quickly reveal which is more appropriate. In general, I would advise witnesses to make eye contact with the questioning attorney, who should be seated in close proximity to the camera. A witness not comfortable doing so should never be encouraged to look directly into the camera.
What should my witness wear?
I would argue that even if you do not expect a camera, the witness should prepare and dress “as if” his testimony will be videotaped. It is important to ask for detailed information about what the witness intends to wear to a deposition. “Business casual” means different things to different people, and even an instruction to “wear what you wear every day to work” can have catastrophic effects, as with the marketing vice president who showed up for deposition in a dark blazer with an even darker shirt and a light colored tie. Perhaps a great look for dinner with a customer, but on videotape the combination screamed “Untrustworthy!”
My instruction usually begins with two directions: “Be comfortable” and “Wear something that makes you feel good about yourself and the way you look.” I ask what the witness would wear if he were going to an important meeting or a job interview. For men, a navy jacket or business suit is almost always appropriate. Blue shirts are flattering for most persons, and a subdued red tie suggests confidence and power. Women should take care with the cut and color of their blouses. Depending on her position and the purpose and content of her testimony, a female witness may want to substitute a tasteful dress for a too-severe suit. Jewelry and makeup must, of course, be subtle. A woman who wears no makeup to work should perhaps be encouraged or assisted to use a little powder, mascara, and lipstick in order to not appear washed out on camera.
I’m uncomfortable talking to my witness about his appearance, but I also don’t want him to go in front of a camera – or a jury – looking the way he looked when I met him. What should I do?
One of the benefits of hiring a consultant is that you can turn these sorts of problems over to him. By all means discuss your concerns with a consultant. He will have suggestions as to how the two of you can handle sensitive issues such as a tendency to wear unflattering clothing or eyeglasses, too much jewelry, a bad hair piece, and so forth.
One of my key witnesses is proficient in the English language, but has a pronounced accent, so pronounced that I am concerned some members of the jury will not be able to understand him. Can you help?
This is perhaps one of the greatest communications challenges a professional faces. There are no easy answers, but preparation sessions can focus on helping the witness enunciate and talk directly to the jury (if at trial). The testimony of such witnesses can often be enhanced by the use of appropriate demonstratives.
I’m trying a case in east Texas. The marketing director of the defendant company played a critical role in decision-making related to the incident that is the subject of the lawsuit. He’s from New Jersey. How is New Jersey going to play in this part of Texas, and how should I handle it?
The best way to know how an important witness will be received in a particular jurisdiction is to conduct focus group research. Feedback from surrogate jurors will inform your decision-making about whether to use a particular witness, and will enhance your ability to prepare a key witness to testify effectively in front of the anticipated jury panel.
My client is the defendant in mass tort litigation. I expect that over the next year or so at least a dozen employees, including senior management, science and marketing, will be deposed. I know I need to work with these witnesses, but my client is reluctant because of the expense. Is there any way to economize?
It may be possible to conduct group “Deposition 101” training for employees that are likely to be deposed or consulted in on-going litigation. Certainly there are issues of confidentiality and privilege, and this is a decision that must be made in conference with in-house counsel, your communications professional, and other key players. The benefits of such a program are many. A presentation can be made to the group, explaining plaintiffs’ claims and outlining the anticipated response. As reliable information is shared, employees’ fear of the unknown is alleviated and rumors can be squelched. An added benefit is that employees often raise issues that counsel hasn’t thought of and may have information that helps to round out what is available from documents and other sources. In my experience, such sessions help to create a sense of unity and trust within the company.
In Conclusion
How a witness tells his story is every bit as important as the content of that story. Unimpressive appearance or inappropriate behavior in front of the camera can destroy the value of otherwise highly reliable and useful testimony. A confident, well-trained witness can do a great deal to thwart offensive use of deposition sound-bites by the other side by minimizing the number that are created in the first place. Effective preparation goes beyond probing a corporate witness’ memory for facts and refamiliarizing him with critical documents. The effective witness understands how his story supports and fits with case themes, has the tools and strength to deal with potential vulnerabilities, and is confident in his ability to send a strong and convincing message to jurors.