Preparing for Deposition—How to Turn Your Executive into a Strategic Witness

By Kristin Casler, featuring Merrie Jo Pitera, Ph.D., and Robert Gerchen of Litigation Insights

Your corporate executive may be an excellent public speaker, confident in front of audiences and at board meetings. But put that same executive in a deposition under examination by a skilled attorney, and the confidence may melt away. Suddenly, the testimony you thought was a lock could send your case spiraling in the wrong direction. Careful and early witness preparation can restore that confidence and help avoid any surprises. Here are some key points to consider.

Hear your witness

You have to be sure your executive is ready, and you can start by acknowledging that testifying is not a natural act, said Robert Gerchen of Litigation Insights. Civilians are used to conversation, with nods and assents and discussions. Testifying in a deposition is akin to speaking a foreign language. The environment is constraining, and for witnesses can be frustrating or cause anxiety. Address your witnesses’ agenda first. Find out how he or she feels about testifying. Are there any concerns? You might discover that your witness is irritated at having to be there, frustrated at the pace of the case, afraid to look foolish or wind up demoted or fired.

“The first part of witness preparation is assuring the witness that the success of the case does not rest solely on his/her shoulders, that everyone has a role in the story and his or hers is only one piece of the larger puzzle,” Gerchen said. “Most importantly, the first part of witness preparation is making sure the witness feels heard. It’s human nature: when we feel heard, when we feel validated, we’re more open to listening. If you want the witness to listen to you … listen to the witness first.”

State your purpose

Most witnesses do not understand the purpose of a deposition and believe their job is to teach the questioning attorney everything they know. Witnesses need to be told that the deposition is a fact-finding opportunity for opposing counsel, not an interview or casual chat, said Merrie Jo Pitera, Ph.D., of Litigation Insights. It is the attorney’s job to ask the right questions; it is not the witness’ job to help or offer more than was asked.

“A witness who talks too much, either in deposition or at trial, can be a liability because volunteering information can potentially highlight vulnerabilities for the other side,” Pitera said.

Preparing the witness for the strategies opposing counsel might use to elicit extra details is the first step. Some strategies include “friendly” opposing counsel. The attorney may actually be nice, but if the niceness is directed at the witness, chances are it’s just a disarming strategy. If your witness anticipates an adversarial encounter and instead is greeted warmly, your witness might drop his guard or respond equally warmly.

Pitera said you should advise your executive to:

• Avoid chatty conversations on breaks or off camera—they are designed to find common ground that can later be leveraged.
• Watch for long pauses or the Columbo bumbling delay act during questioning—the witness’ inclination is to fill that uncomfortable pause with more details.
• Know that the questioning attorney may play dumb. Attorneys have researched the matter thoroughly and are never uneducated about the subject of the deposition. They do not need a teacher spouting unnecessary and potentially damaging details.
• Remain calm. Instruct executives not to let an attorney’s surprise remark about an answer put them on the defensive and make them feel the need to explain beyond the scope of the original answer.

Don’t over prepare

You might think you want your witness to be uber prepared. But that can result in pat or canned answers, and if jurors see the deposition they will respond negatively.

“This adversely affects a witness’ credibility,” Pitera said. “Jurors have told us in post-trial interviews (and in our mock trials) that an over-prepared or scripted witness loses credibility because they are ‘saying what they have been told to say.’”

Of course, it is vital to run witnesses through their direct and anticipated cross to help refresh the witness regarding the facts and themes of his or her testimony. The trick is to not go too far. You need to preserve some semblance of extemporaneous delivery for the final performance.

Develop the witness’ core themes

Most witnesses, even executives, are typically anxious because they don’t know how to handle the vast task they face. Your job is to help your witness develop case themes for his or her specific piece of the puzzle, Pitera said. This makes the task more manageable and helps the witness be more comfortable in the role. The witness must be engaged in and take ownership of the themes. If the witness just repeats the themes you provide, you again have those canned answers. It can be helpful to review with your witness three main messages. This focuses the witness’ testimony to only the most necessary and relevant points and provides a safe harbor for the witness to return to during questioning.

Prepare to answer the tough questions

Tough questions from opposing counsel can derail a witness’ credibility. Witnesses have to practice answering, not dancing around the toughest questions. If your executive in a products liability case is asked if he or she would use the product at issue, the witness must answer firmly and without hesitation, Pitera said.

“When preparing your witnesses for deposition or trial, if not already compiled, we recommend developing a continuing list of the very uncomfortable, difficult questions witnesses might face,” Pitera said.

Additionally, make certain that none of your company witnesses’ testimony contradicts another’s.

Other useful tips

Jurors may see video depositions, so witnesses should:

• Appear knowledgeable and speak confidently about their subject but not come off like the smartest person in the room.
• Give short, succinct answers.
• Be very familiar with the documents being reviewed or those that could potentially be presented.
• Never use hedge language, such as “ah,” “um,” “this might be a bad idea,” “don’t you think?” “to be honest,” “to be frank,” “I think,” “I believe,” “maybe” or “perhaps.”
• Not act nervous by wringing their hands, blinking excessively, fidgeting, hedging when thinking, cleaning their glasses or taking drinks of water.
• Maintain eye contact, be well-groomed, wear attire appropriate to their position.
• Give positive and negative testimony when warranted, so as not to appear biased toward the company.
• Stay inside their scope of knowledge or expertise and not try to cover too much territory.
• Know when to say “I don’t know.”

“When setting up video depositions, counsel should be an active participant in seating and camera arrangements, so it is clear that the witness is facing the questioner,” Pitera said. “A witness who is facing the camera directly and frequently looks off camera gives the appearance of uncertainty, and worse, is seen as seeking approval from counsel outside of the camera’s view.”

This article is based on a collection of articles and blogs from Litigation Insights.