Consider Early Witness Preparation
Before Your Corporate Witness is Deposed

Karen Kash Redden, M.S.

Trial may be months or even years away, so why the concern about preparation of witnesses? Surely there is time enough between the close of discovery and trial to get key witnesses “up to speed.” Why waste valuable attorney time on preparation of minor players? Why pay a jury consultant to work with a witness who may never see the inside of the courtroom?

Videotaped depositions are no longer a trend; they are the norm. Neglecting the pre-deposition preparation of any witness can have long-term consequences for trial. Waiting until a day or two before a scheduled deposition to work with a key company witness places him, and your case, at a disadvantage. 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.

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 (damaging) fact can thus be elevated to the position of de facto corporate representative. 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.

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. And, 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 of sound bites 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 knows 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.

The decision to use a communications specialist to assist in deposition preparation depends on clients’ budgetary concerns and your confidence in your ability or that of your trial team to meet the needs of the witness from a communications perspective. At a minimum, to avoid post-deposition regrets:

1. Begin the process as early as possible. Multiple short sessions are typically more effective than marathons.
   
   
2. Take every witness through a practice deposition, using a video camera. You will find a problem, or learn something new. Now is the time for a witness to see himself through a jury’s eyes. As you review the videotape with the witness, he will find mannerisms to self-correct and you will have the opportunity to talk about your theory of the case and how the witness’ testimony can reinforce key themes.
   
   
3. Encourage your witness to maintain eye contact with the examiner. Few witnesses are capable of looking directly into the camera and testifying convincingly, nor is this necessary if you have arranged for the videographer to set up so that the eventual jury will have a nearly head-on view of the deponent.
   
   
4. Explain to your witness that even if he expects to testify, excerpts from the deposition will likely be used at trial, in an attempt to impeach or cast doubts on his or her credibility or expertise. This potential is minimized when responses to key questions include positive, thematic statements that make it difficult for opposing attorneys to isolate sound bites that support their case story.
   
   
5. To that end, make sure your witness understands and can articulate the three or four “messages” to be conveyed by his testimony, and how those messages fit into the overall case theme. It is usually more effective to begin this process by asking the witness what these messages are, rather than feeding them to him verbatim. With practice, these messages become substantive “safe harbors” when the tough questions are asked.
   
   
6. Impress upon your witness that he should testify only to what he knows. Speculation has no place in the deposition setting. Similarly, there are no points for creativity; a true answer remains true and should be repeated as often as necessary in response to repetitive questioning.
   
   
7. Assure your witness that, as his advocate, you will be there to back him up. You will not let opposing counsel “beat him up.” If, despite his best efforts, his story does not get a complete airing, you will see that it is told, either in deposition or at trial.

Any witness’ communication skills and persuasiveness can be improved. Taking time to work with witnesses before deposition nearly always makes going to trial more rewarding. Arming your witness with the tools to handle whatever situation arises will instill confidence and promote credibility.