The Art of Advocacy

If you represent the witness, you have to prepare yourself and your client.

To begin with, when appropriate take time to explain the case as a whole and the various theories of all parties to the witness. A full explanation will help the deponent understand what the case is about and respond to the questions in an intelligent and comfortable manner. (Beware that what you say may be discoverable during the deposition by opposing counsel, particularly if the witness is not the client. For example, you could inadvertently waive work-product protection by sharing your notes with a witness.)

Secondly, explain in detail the subjects on which the witness is most likely to be questioned. In that vein, be sure to give and discuss with the witness documents he is likely to see, paying close attention to those he may have authored or received.

During the prep meetings, encourage him to ask questions about what he may expect. It’s also a good idea to engage the witness in a ‘dry run’ or practice session. For the deposition itself there are many pointers to offer your client, though here are twelve commandments that come to mind:

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Once the goals of the deposition are selected, the next step is to consider organization of the questioning. Because you are not at trial, you are not necessarily putting on a rhetorical show for an audience. Some pointers that relate to direct or cross examination, such as those concerning body language and delivery, are not as relevant here.

Still, in a deposition you are, even if tangentially, developing a case. You want to elicit favorable testimony, and to do so requires strategic questioning. It’s possible the testimony could come before the jurors later on, so you want it to read to your liking. Try to begin and close with strong testimony. It’s often mentioned, but worth repeating: people remember best that which they hear first and last. This principal has always helped me organize witness examinations and depositions, as well as opening statements and closing arguments and everything in between.

Unlike a direct examination at trial, however, a deposition need not be quite as selective. You may want to ‘cover the waterfront’ and ask a lot of questions as you try to turn up any valuable information from the witness.

To help yourself keep all this in your head, consider preparing a deposition notebook that contains an outline of what you want to cover, technical questions written verbatim, and reminders for follow-up queries. Organizing documents in advance, pre-remarking them and having copies for other counsel is also helpful.

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If you need to, remind yourself of the rules of evidence before deposition day. The formal rules of evidence in force at trial are much relaxed in a deposition context. The hearsay rule, for instance, doesn’t apply in a deposition.

Often during the deposition the witness’s counsel will object to a question to protect his or her client’s interests at trial. Nevertheless, the witness will be told by the lawyer interposing the objection to answer the question. For example, “What did the President tell you about his plan?” “Objection, hearsay, but you can answer”, might be the lawyer’s response to a question the answer to which counsel believes would be improper during trial but not improper for the deposition. Whether the answer is admissible at trial is reserved for a later day.

There are limited occasions when it is proper to refuse to answer a question during a deposition. These occasions arise when the examiner is improperly probing for information that is protected by a recognized privilege under the law, such as the attorney-client privilege or the work product doctrine. The privilege against self-incrimination is another important privilege. Sometimes these privileges are inadvertently waived. For example, counsel may have previously shown his or her personal notes relating to trial strategy in preparing the witness for deposition. Under such circumstances the objection posed to the examiner seeking to learn about those notes may have been waived.

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Aren’t depositions fun? Hour after hour of barbed questioning can make for a rather treacherous afternoon for the hapless witness. That’s not to mention the challenges to his professional integrity, expertise and character he may well have to endure.

No matter how unpleasant a deposition promises to be, a lawyer can take steps to prepare both himself and her witness. Though a deposition hasn’t the pomp and circumstance of a trial, an unwary deponent and attorney can lose their case if they fail to ready themselves.

Each deposition considered must be analyzed in terms of purpose. Is this deposition for purposes of summary judgment? Do I want to lock the witness into a particular position? Am I simply seeking to discover what knowledge the witness possesses about important events in the case? You may simply be curious about the substance of what the witness’ testimony would be if s/he were to be called to testify at trial. If the witness is an expert, you will want to learn not only the expert’s opinion about relevant issues, but also the basis of this opinion, and the qualifications to render it.

Other motivations for deposing a witness include:

Continue reading "Deposition Preparation: Why Depose a Witness" »

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