TIPS FOR PREPARING YOUR CORPORATE WITNESS FOR DEPOSITION

The foundation for a successful trial result is necessarily laid well before trial. One of the factors in a successful defense of a corporate client is the outcome of the corporate depositions. The following thoughts on corporate deposition preparation address several issues that are critical to successfully preparing a corporate witness for deposition.1

1. Partner with In-house Contact

It is important to utilize your in-house contact with the corporate defendant as soon as the depositions are requested to assist you in making sure the requested witness provides you with sufficient time and attention for deposition preparation. Make sure that your in-house contact obtains a time commitment from the witness to allow for sufficient preparation. Also, work through in-house counsel to ensure that the witness has thoroughly reviewed all appropriate materials relating to the case before the deposition preparation. It is particularly helpful to schedule a conference call in advance of the deposition preparation session with the witness and in-house contact to go over issues relating to the preparation. This conference call also allows the lawyer to confirm that any relevant documents have been gathered from the witness and to learn of the existence of any documents of which the witness is aware that were not gathered during the preparation of the client's discovery responses. Obviously, it is much better to leam of these documents in advance of the deposition preparation session rather than learning of their existence in the deposition preparation session, or worse yet, in the deposition itself. This conference call also allows the witness to raise any preliminary concerns regarding the deposition and the preparation.

2. Cover Trial Themes and Issues

Counsel should discuss both the plaintiffs and defendant's case themes and arguments with the witness so that the witness has an understanding of the overall issues in the case and a more thorough understanding of the issues relating to that witness' involvement in the case. In addition to giving the witness context as to where the witness' testimony will ultimately fit in the case, providing this information prepares the witness to address questions from plaintiffs counsel that attempt to lead the witness into providing testimony that is really outside of the witness' knowledge.

3. Witness' Role in case

Each witness needs to be comfortable testifying as to their factual involvement in the case, such as approving the denial of an insurance claim, designing a product, etc. The witness must be able to articulate what happened, what they did or did not do, and why they did or did not do it. This does not mean that the witness should be given a script or that the substance of the witness' truthful testimony should be altered. Instead, it is an exercise in making sure that the witness can organize and articulate the witness' factual knowledge in a manner understandable to a jury and can sustain confidence and consistency in the face of cross-examination. It is easy to become bogged down in the general deposition preparation and addressing what are often voluminous documents in the case and fail to spend sufficient time focusing on the questions that are the most relevant to this witness' role in the story to be told at trial. This is not contradictory to instructing a witness to only answer the question that is asked because these issues are so central to the witness' testimony that he or she will be asked direct questions about their role and will be cross-examined or set up for later cross-examination by the plaintiffs lawyer at trial. These central issues are the perfect subjects for the mock examination.

4. Mock Examination

Particularly with an inexperienced witness, it is very helpful to incorporate a mock examination into the deposition preparation process. If another lawyer is available who is not primarily handling the witness' preparation, this lawyer should perform the mock examination. The mock examination does not need to be lengthy and should be broken down into segments so that witness questions or teaching points are not forgotten and can be addressed. This examination provides an excellent opportunity to probe the witness' understanding and competence in the abovediscussed essential facts of his or her testimony and can be used to familiarize the witness with various techniques or approaches that the plaintiffs lawyer may take in an attempt to attack the witness' credibility or the substance of the testimony.

5. Address Industry or Company Litigation Issues

Frequently, plaintiff's counsel will raise industry wide or companywide litigation issues during the examination of the witness. With the information sharing within the plaintiffs' bar, further facilitated by the internet, plaintiffs' lawyers will often probe witnesses on subjects that have arisen in litigation with other companies in the industry or other litigation involving the particular client. While it is impossible to address all of these with a witness, and it may be advisable not to educate the witness as to topics about which he has no knowledge, it is important to prepare the witness for these questions coming from outside the immediate facts of the case and discuss how to handle the questions. Furthermore, to the extent that the witness has factual knowledge relevant to those questions, the handling of those questions needs to be addressed. The most important goals are to make the witness aware of the potential for these questions so that the witness is not caught off guard and to make the witness aware of these issues so that plaintiffs counsel is not able to lead the witness into commenting on matters about which the witness has no personal knowledge.

6. Documents

The witness needs to be very familiar with any documents that are central to the witness' participation in the underlying fact situation. Preparation on these documents should be incorporated into the discussion of the witness' factual involvement in preparation for examination on those subjects. It is just as important, however, that the witness be prepared for questioning on documents outside of the central facts of the case and/or outside of the witness' involvement in the case. This is a corollary to Topic No. 5 regarding industry wide and companywide litigation issues. This author is aware of at least one reported decision that contains a discussion of a document that supported a verdict against the company when that document was actually prepared by an unaffiliated vendor during a marketing presentation. Company witnesses had given testimony regarding the document under the assumption that it was a company document because it had the corporation's name at the top of it. The witness needs to be prepared to respond to questions concerning documents about which the witness is unfamiliar. Witnesses are frequently led to make assumptions when testifying concerning documents to which they have no knowledge beyond what is written on the page. Witnesses should be cautioned to make sure that they thoroughly review documents presented to them and to avoid testifying regarding documents about which they do not have personal knowledge. They should also be cautioned to avoid testifying about the meaning of documents that they did not themselves prepare, and to avoid "interpreting" language in documents that they did not prepare.

7. Hypothetical Questions

Witnesses should be prepared to address hypothetical questions. Frequently, plaintiffs counsel will attempt to obtain damaging testimony by using hypotheticals to isolate certain issues in an attempt to manipulate the testimony of a witness. Since witnesses deal with actual fact situations with innumerable variables, rather than hypometicals, it is very difficult for them to truthfully respond to a hypothetical question which often asks the witness to make numerous assumptions and to speculate as to how the witness would address a particular situation that has not actually occurred. Witnesses should try to avoid responding to these questions by stating that they cannot accurately answer a hypothetical question because of the number of variables that would be involved in a real world situation, unless the hypothetical is one to which the witness can actually make a truthful, accurate answer. Those situations are rare.

8. Opposing Counsel

Lawyers are creatures of habit and frequently work from the same deposition outline for analogous depositions. If there is no prior deposition taken by plaintiffs counsel available in a particular case, it can be helpful to attempt to obtain prior corporate depositions taken by plaintiff's counsel in other cases. These prior depositions can reveal patterns and techniques utilized by plaintiffs counsel and those techniques and methods of questioning can be utilized in witness preparation. For example, plaintiffs' lawyers may attempt to have the witness adopt certain guidelines published by a national association that have not actually been widely adopted as "industry standards." Unsuspecting witnesses are often led into this trap.

9. Senior Corporate Officers and Executives

There are several additional considerations when plaintiffs counsel requests the deposition of a senior corporate officer or executive. This subject alone could be the topic of a journal article, and there are some excellent ones on the subject. The first issue is whether to seek a protective order to prevent the deposition as an "Apex" deposition. There is case law holding that plaintiff should not be able to take the depositions of high ranking corporate officers absent a showing that the officer has unique personal knowledge relevant to the case or absent a showing that less intrusive methods to obtain the needed discovery have been exhausted.2

If the deposition is allowed, high ranking officers in the company present unique challenges for counsel, including limited availability, lack of detailed familiarity with the subject, vulnerability to company "policy" questions that are beyond the scope of knowledge of company witnesses who had actual hands-on involvement in the matter, and the need to take a "big picture" view that can sometimes seem contradictory to the handling of an individual matter.

At a minimum, the witness should be prepared to answer the tough policy questions that can be expected from good plaintiffs' counsel, such as questions regarding the moral obligations of the company to those who purchase or use their products, the company's responses to prior product failures, company safeguards, etc. Because of the time constraints in preparing senior corporate witnesses, preliminary preparation by the defense lawyer concerning potential "big picture" questions relating to the subject of the litigation and tight organization of the witness preparation is even more essential to maximize the effectiveness of the time available.

10. Witness Comfort and Confidence

Throughout the deposition preparation process, it is important to assess the confidence and comfort level of the witness and to tailor the preparation to that comfort level. It is very easy to overload the witness or shake the witness' confidence. This is a difficult balancing act that must be handled on an individualized basis, but it is important to simplify and focus the preparation when it appears that the witness is becoming overwhelmed and to encourage and support the witness when the witness' confidence appears to be shaken. Otherwise, the deposition preparation can do more harm than good.

11. Video Depositions

In today's litigation environment, video depositions are very common. Video depositions involve another level of deposition preparation to prepare the witness to make the best possible impression on camera. It is helpful, if not essential, for the mock examination in a video deposition to be recorded on video in the same manner as it will be at the actual deposition to show the witness how certain mannerisms and other issues covered during the video deposition preparation can impact the deposition testimony. There are a number of articles on video depositions from which tips and techniques for preparation unique to that format can be obtained.

While every defense lawyer has their own opinions on me specifics of preparing corporate witnesses for deposition, incorporating these tips into your preparation of corporate deposition witnesses should improve the results of those depositions, leading to a successful defense of the case.