R O S S D A L E C L E

M A T E R I A L S

T E L E P H O N I C S E M I N A R

M A Y 3 , 2 0 1 7

© 2 0 1 7 A L L R I G H T S R E S E R V E D , R O S S D A L E C L E

Taking & Defending Powerful Depositions:

PREPARING THE WITNESS

“What to Expect”

Before you can prepare your client you need to be prepared!

What are your facts?

What is your theory of the case?

What is your expectation of the defense to your theory?

Clues come from pleadings and comments made during hearings, therefore probe by litigating motions for protective orders and limitations on the deposition

CLIENT PREPERATION

Stress the need to be completely truthful.

False testimony can result in the case being dismissed for a fraud upon the Court.

Being “Honest”. Avoid the use of the terms “being honest”, “honestly”, "in all candor," “really”. Each of these phrases suggest deceit and/or a lack of candor on prior answers.

WITNESS PREPERATION

Think before you speak. Many attorneys will tell their witnesses to take a deep breath or to count for 5 to 10 seconds before answering. This may be a little too dramatic. A witness should avoid the conversational approach and should listen (at least) before the witness responds.

The problem with this approach is it will scare your client and they will look untruthful if being videotaped.

Tell them “A deposition is not a test, just be honest.”

WITNESS PREPERATION

Make sure to answer the question and look the interrogator in the eye without rocking in your chair. When a witness doesn’t answer a question directly, it creates the appearance of deception and is a “dead tip off” to opposing counsel that the Achilles heel has been discovered. Looking away and rocking in your chair are signs of being “unstable” in the witness’ answer and/or not willing to “back the answer up” with a truthful eye.

The Unnecessary Explanation. A witness gains no credibility by explaining how he or she arrived at their answer and may do irreparable damage. By way of example, if you know that the skid marks were “at least” 60 feet because your car is 10 feet long and the distance was at least 6 car lengths, you may be surprised to learn that your car is 15 feet long and the distance was really 90 feet. An industrious attorney will take a witness’ explanation and destroy it!

WITNESS PREPERATION

WITNESS PREPERATION

Avoid volunteering information. The deposition will go on endlessly if the witness volunteers. While this is important, there are certain areas in which some information must be volunteered or the answer will be incomplete. The attorney and paralegal must assess whether the witness is competent to “ad lib” and volunteer or whether the witness is sufficiently weak and should merely answer the question. When in doubt, don’t ad lib.

But, they need to get their story out. Train them to wait for the right question.

WITNESS PREPERATION

Do not answer when you do not understand. Everyone knows what happens when you “assume”; this is particularly applicable when the witness assumes that he or she understood a particular question.

Witness Preparation 2

Refer only to what you know. There is a subtle, yet important, difference between asking whether a witness has any information or the generic “do you know”. This is somewhat akin to volunteering information; a witness should refer to first hand knowledge unless asked if he or she has any other information.

Witness Preparation 3

Avoid guessing. Everyone wants to “know” the answer; many witnesses feel stupid or powerless if they cannot answer a particular question. Regardless, a witness should avoid guessing….or gamble at your own risk!

WITNESS PREPERATION

Using “Quote” Marks. A witness should ensure that any time the witness makes reference to a person’s statement or discussion, that the witness is either paraphrasing or directly quoting the witness. In testifying concerning conversation, make it clear whether you are paraphrasing or quoting directly.

WITNESS PREPERATION

Summaries Are Helpful. If there is a lot of “meat” in the answer to a question, the witness may summarize. In other words, if there were 4 events that culminated in the witness being at the scene of the accident, it may be that the witness can simply indicate that he or she left home and arrived at the scene. A good inquiring attorney may try to put the pieces together with specific questions on each “event” in the sequence. In many instances, however, the attorney is satisfied with the summary.

WITNESS PREPERATION

Never and Always: A witness should not color their own testimony because there are exceptions to every “never” or “always”. Never say never.

PREPERAWITNESS TION

Speaking For Others. A witness should be careful not to speak for others because the witness may be surprised when the other person does not agree with the witness. For example, a witness should not say “my wife will tell you that I never drive more than 55 mph.”

WITNESS PREPERATION

Knowing Your Exhibits. Be sure that if your witness makes reference to a document, a picture or some other exhibit, the witness in virtually every instance has the document in front of him or her and should not quote unless the witness is dead certain that the quote or reference is 100% accurate.

WITNESS PREPERATION

The Phantom Exhibits. A witness should avoid referring to an exhibit that is not present at a deposition, unless the document is readily obtainable AND the witness is certain on the information contained in the exhibit. Additionally, a witness’ reference to a document that the inquiring attorney was unfamiliar with may educate the inquiring attorney to obtain the document. Notwithstanding this, if the case, or the resolution of the case, hinges on a document that is not present at a deposition, it may be incumbent on the witness to refer to the document if necessary.

WITNESS PREPERATION

Allowing The Spin Doctor To Operate. A witness should not let the inquiring attorney put words in the witness’ mouth or characterize an event or circumstance in a manner that the witness does not share.

WITNESS PREPERATION

The Lead In. Attorneys will sometimes begin questioning by reciting a “truism” about the case. If the “truism” is not accurate, the witness should not answer the question. By way of example, if the attorney begins a question by stating, “everyone knows that SR 5 is in bad condition….”, the witness should not answer the question if he or she does not agree.

WITNESS PREPERATION

Inconsistencies. If an inquiring attorney demonstrates that the witness’ testimony has inconsistencies, the witness should not be rattled, nor should the witness offer an explanation unless asked. Clearing up the apparent inconsistencies is the job of the attorney representing the witness.

WITNESS PREPERATION

Your Words, His Paraphrase or Summary. If the inquiring attorney summarizes the witness’ prior testimony inaccurately, the witness should take exception. “Your twisting my words”

But. a witness MUST avoid arguing with the examiner and expressing anger with the questions asked. In so doing, the witness loses any aspect of objectivity and focus on the elements of a good examination. The witness’ attorney is charged with ensuring that the questions are appropriate; if no objection is voiced, the witness should answer the question.

WITNESS PREPERATION

Doing The Attorney’s Work. The witness should let his or her attorney supply documents or exhibits requested by the other attorney; the witness does not need to “offer” to provide anything to the attorney.

Witness Preparation

Listening To Objections. If the witness’ attorney objects to a question, the witness should listen carefully to the objection. It may contain a warning to the witness. By way of example, if the attorney objects that the question calls for speculation, the witness should be careful to ensure that his or her answer is not a guess. If the attorney objects that the question is a compound question, the witness needs to ensure that each part of the question can be, and is, answered.

WITNESS PREPERATION

Humor Will Always Fall On Deaf Ears. Some witnesses are characters and enjoy an opportunity to be heard, be on stage, or simply share humor or “stories” in their deposition…..Each effort by a witness, however, at humor or story telling weakens the case, and may ultimately prove to discredit the witness. Thus, witnesses should avoid humor because their efforts may be viewed by jurors as not taking the case seriously…..And, if the witness/party does not take the case seriously, why should the jurors share the witness’ point of view?

WITNESS PREPERATION

Obscenities and Slurs. Witnesses should avoid the use of obscenities, slurs and “street talk” because there is no assurance that the jury will appreciate such language or will share the same view as the witness.

WITNESS PREPERATION

Going Off The Record. Once the witness enters the room, he or she is “on the record” and the witness is not “off the record” until they are at home! Any belief by the witness that he or she can say something off the record should be cleared up immediately. In many instances, the examiner will use the off the record comments as an invitation to inquire on an area not anticipated by the examiner.

WITNESS PREPERATION

Refreshing The Unrefreshed. If the examiner offers the witness a document or a bit of information in an effort to “refresh” the witness’ memory and it does not help, the witness should advise the examiner that the information was not helpful. Not every “helpful hint” will assist a witness and a witness should not feel “guilty” if his or her memory does not serve up the answer. There should be no “grand assumption” that anything offered by the attorney will refresh recollection.

WITNESS PREPERATION

Acting Like A Lawyer. One of the great failings of witnesses is the over concern about how each answer will “play” into the trial and measuring each response such that the witness is more concerned with how the answer “sounds” and not what the truth is under the circumstances.

Witness Preparation

Acting Like a Lawyer 2: It’s the lawyer’s job to anticipate what testimony and evidence will be favorable, will be adverse, can be accentuated and can be downplayed. It’s the witness’ job to tell the truth and answer the questions asked. When a witness measures their testimony by “calculating” the “right” answer rather than the “accurate” answer, the witness steps outside their role as a witness and into the lawyer’s role.

WITNESS PREPERATION

The Light Of Knowledge. While a witness is being deposed, he or she may be “hit” with a memory or an important “nugget” for which inquiry has not been made or has previously been made. When this happens, the witness should keep the “flash of light” without disclosing it to the examiner. During a break, the witness can share the “flash” with his or her own counsel and counsel can make the determination on whether such information should be offered in the deposition.

WITNESS PREPERATION

Breaks. Any recesses should be used by the witness to consult with counsel in private and not in public. Phrases such as “how am I doing?” or “am I winning?” should be dissuaded. Everyone wants to be reassured that they are doing fine in a deposition yet most people are not looking for constructive criticism. If the attorney is brutally honest, it may rattle the witness and break their concentration. Witnesses should let their attorneys offer up suggestions during breaks without any “colorization.” Use all recesses as an opportunity for the witness to follow their attorney to a place where they can confer in private.