Frequently Asked Questions

It is important not to assume that just because someone is the CEO of a Fortune 500 company that s/he will make a great deponent. For that matter, don’t assume just because someone is a personable dinner companion that s/he will be effective with jurors. It is critical to put each witness, no matter how busy, “through the paces,” before deposition or trial.

1. You want to know how that person will react to being questioned, especially on topics that s/he may believe to be irrelevant or sensitive. Telling a witness what to expect is never enough; the witness must have an opportunity to practice responding to the tough questions.
   
   
2. An executive accustomed to having things move at his or her 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 consider each question carefully, without regard for the examiner’s style.
   
   
3. Especially when a deposition is captured on visual media such as videotape or DVD, it is critical that a witness not appear to be stalling or disingenuous. Jurors expect corporate executives to know what was going on and to be able to talk knowledgably about the issues at stake in this litigation.

More information about the importance of deposition preparation is available here.

The “rule of thumb” is three hours of witness preparation for each hour of testimony. The problem with this “rule” is 1) 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 or her deposition or trial testimony. The time can be spent productively, with the first fifteen minutes or so reserved for a quiet conversation with me where I explore his or her concerns and experience and the remaining time spent in exercises that allow assessment of the witness’s readiness and ability to testify persuasively.

Jurors expect a witness to have met with attorneys, reviewed files, and thought about the issues. Despite oft-voiced concerns, 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 repeatedly 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.

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 her memory is seen as wasting their time. If the litigation wasn’t important enough to this witness to spend a few hours going over her files, why should jurors give her, or her company, the benefit of the doubt? More important, you are missing an opportunity. An effectively prepared witness knows the case story and where she fits in. 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. This is particularly important when a key witness is called adversely during plaintiff’s case.

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?”) continues to be the most comprehensive review on this topic. Davis (an attorney) and Beisecker (a litigation consultant) base their arguments 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, this Opinion provides a strong basis for arguing work by trial consultants done at the direction and under the supervision of counsel is not discoverable. (See “Third Circuit Leans Toward Protection” for a summary of this Opinion.)