Since deposition testimony cannot be changed, witness preparation is a critical focus for any attorney before an upcoming deposition. Poor witness preparation for a deposition can impact the entire trial, and unfortunately, many attorneys do not focus on deposition witness readiness.
Never leave this to the last minute, as it will require practice ahead of heading to the courtroom. The Trial Concierge, helmed by Beverly “Splash” Abbott, provides trial consulting services, including preparing witnesses for deposition, jury selection strategy, and mock jury services, with proven results from voir dire to verdict. In this blog post, we explain why this is an extremely important area of focus when getting ready for trial and how our unique expertise, insight, attention to detail, and full support for every case from start to finish makes the difference.
What Is a Deposition?
The Basics of the Deposition Process
Deposition testimony is where a deponent gives a sworn statement outside of court. The opposing attorney from opposing counsel will ask deposition questions with a court reporter present who records their responses under oath.
Depositions are a common part of the discovery phase and a useful tool for gathering facts ahead of trial. What comes out of a witness’s mouth is important during this time. As the plaintiff’s attorney, you will need to prepare your witness for what is to come in the upcoming deposition when facing off with the defending attorney.
Key Players Involved
In a deposition, the people present will include the witness or your client, the defending attorney, opposing counsel, and the court reporter. In some cases, a videographer may be present if the deposition is being videotaped. Your goal as an attorney is to help the deponent under oath answer truthfully while being prepared to face scrutiny from the opposing attorney. The steps that follow can get you started on this process.
Step 1: Explain the Purpose and Scope
Help the Witness Fully Understand the Process
First, you will need to review the goals of the deposition with the deponent and explain what’s at stake in this process. They need to be informed of the importance of telling the truth and speaking only from personal knowledge. When they answer, they must focus on the facts in their statements rather than guess or make assumptions. Lying in an answer is perjury; another issue is volunteering information to the other attorney that could be used against them.
Step 2: Review Key Documents and Facts
Organize and Prepare Relevant Information
As you prepare your witness to answer at the deposition, review the documents, reports, and evidence they might be asked about. Make sure that you clarify any privileged information that should not be disclosed. It is also important for witnesses not to bring documents unless they are specifically instructed to do so as part of their testimony.
Step 3: Practice Answering Questions Clearly
Teach Proper Response Techniques
Preparing a witness for deposition also requires running through the process of deposition by asking them questions. They should know to answer questions honestly and keep responses brief. In addition to telling the truth, they should not volunteer information.
Witnesses should not guess when they answer, and you should let them know that they can ask for clarification or answer, “I don’t know,” if they aren’t sure about a particular fact.
One of the most vital points here is that listening carefully before they speak and not interrupting during these questions is something your witness needs to keep in mind.
Common Pitfalls to Avoid
Whether a plaintiff or witness needs to provide testimony during deposition, they should understand the weight of their words. It is critical to explain that they shouldn’t make jokes or sarcastic comments, nor should they engage with any small talk to fill the silence. There is no winning in deposition, and their focus should be on following proper procedures.
Running through potential leading questions can help them avoid another pitfall, which is designed to confuse or trap them. By covering this ground, your deponent will have confidence during the deposition.
Step 4: Go Over Deposition Rules and Expectations
Key Reminders for a Smooth Experience
Your witness should be reminded to never answer a deposition question until the full question has been asked. They should be encouraged to take their time to think before speaking and allow time for any objections. Never answer until the full question is asked and direct them to the attorney rather than the court reporter or the opposing party.
Coaching on Body Language and Demeanor
While you may spend a great deal of time in these legal processes, most witnesses and deponents will find this unfamiliar ground. They likely won’t be used to speaking in front of others, particularly with such scrutiny. This is why practicing and preparing ahead of depositions is ideal to help them feel more comfortable.
Coaching must be done to help them maintain a calm and professional demeanor. They should avoid seeming evasive or defensive during questioning while coming across with confidence rather than arrogance. This is why waiting until the day before trial to coach your witnesses is problematic as most will need this assistance for the best possible outcome.
Step 5: Roleplay and Conduct a Mock Deposition
Simulate Real Deposition Tactics
Holding a mock deposition allows you to practice under pressure, and it’s something that you should run through a few times well in advance of the actual deposition. Include difficult questions as well as any improper questions that the opposing attorney might ask. This allows them to get practice maintaining their composure and clarity even amid tough questioning tactics.
Step 6: Clarify Legal Protections and Boundaries
What the Witness Should Know
Prior to providing testimony at deposition, you must make it clear that the attorney is there to instruct, object, and protect legal interests at stake in the case. While no judge is present, the rules still apply. As a lawyer for the plaintiff, you should be caring for your witnesses and ensuring that they speak the truth. However, they are human, and they should be encouraged to alert you if they need a break. Since they can ask you questions privately during the deposition, make sure they are aware of this and work these types of examples into your practice deposition.
Final Deposition Tips for Witness Success
Emphasize These Golden Rules
The golden rules of depositions are to tell the truth, never speculate, and stay calm. Sticking to answering only what is asked is best, rather than trying to guess or assume. If a witness makes a mistake, let them know that they should correct it right away.
Additionally, if a witness is asked to look at a document from evidence and confirm its contents, they should take the time to fully read through it. Some things may not be readily obvious and by simply agreeing, they may not realize it is something different.
After the Deposition
Once the deposition is complete, the person who provided testimony in deposition should review the transcript with you to ensure its accuracy. As the lawyer, you should explain the role of their testimony in terms of a settlement strategy or if it heads to trial in the future.
Lawyers following a deposition must begin the next steps for legal proceedings or a lawsuit. By ensuring the deposition has been conducted according to law and witnesses are prepared, it will make preparation for what’s ahead smoother.
The Role of a Trial Consultant in Witness Preparation
As a lawyer, you have many details to oversee and accuracy is imperative. As you build your case strategy, you may want to consider enlisting the services of a trial consultant who can help you with witness preparation and in other ways ahead of trial.
Developing Skills to Enhance Communication
With a trial consultant assisting your legal team, you’ll have someone working with witnesses to help them boost their communication skills and allow for concise testimony. What they say is important when under oath; their body language is another critical point to help establish credibility while exuding confidence. Your consultant can also help them explain things in an engaging way that allows the jury to connect with their side of the story.
Teaching the Dynamics of Trial
Trial consultants are an asset as they can help witnesses understand the impact of their testimony and how it relates to the case. They work with them to get them ready for direct and cross-examinations, prepare them for challenging questions, and help them recognize leading questions.
Providing Tools for Trial Success
A consultant will be able to arrange mock trials and other simulations that can help your witnesses practice. They observe their behavior and provide feedback objectively to help them see where they can make improvements. Video recordings are often used to point out these specifics and address areas that need work.
As you prepare for your case, get the help you need from The Trial Concierge. We provide insight and full support from start to finish in your case through setting up strategy and themes, designing graphics, and presentations, witness prep, expert selection, and sitting in trial and watching the jury. Many consultants often help with jury selection and then leave, while we stand out by being there for you and your legal team through the whole process, providing constant support and feedback to enhance your case and create unique compensation opportunities. Contact us today to schedule a free consultation to learn more about our services.
