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Litigation: Preparing Your Witness for a Deposition

Craig MartinWitnesses can appreciably advance your case while testifying in your opponent's deposition. But the difference between a successful deposition and an unsuccessful one may be whether your witnesses understand how to connect their testimony to your strategy. Counsel should keep in mind the following "best practices" that will focus your attention on the most important elements of deposition witness preparation.

David BradfordAbove all else, counsel must maintain candor toward the court in all judicial processes. Model Rules of Professional Conduct R. 3.3 (1983) ("Candor Toward The Tribunal"). Your witness' testimony must conform to facts that counsel knows to be true and counsel must take remedial action whenever a witness' testimony fails that standard.

Think about your objective. Your witness should not try to use a deposition as an opportunity to tell her "story" for the record. Nor should witnesses try to use a deposition to persuade the opposing counsel of their version of the facts. Rather, witnesses should answer questions truthfully, and as directly, simply, and clearly as they can. The testimony, statements, and admissions of the witness during the deposition should be consistent with that core theory of the case.

Confirm knowledge and explain your core theory and the opponent's case. While you should discuss the core theory of your case with the witness, a "helpful" witness may conform his or her conception of the facts to counsel's theory, leading to ethical quandaries and loss of credibility if contradictory facts are later established. Depending on the circumstances, counsel may find it advantageous to separate knowledge confirmation from witness preparation entirely. In explaining counsel's core theory, counsel should describe the basic legal principles at issue and connect those principles to the facts the witness knows. Witnesses should also know the key elements of the opponent's case and tactics. Topics for discussion include the opponent's basic factual theory, the opponent's likely attempts to distort facts, and opponent's basic style and demeanor.

The art of questioning. Deponents should know how questioning will take place in the deposition -- "examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence." Fed. R. Civ. P. 30(c)(1). In order to improve witnesses' familiarity with the types of questions they will encounter, certain frequently used forms of questions should be described and explained (see "Questions and Answers"). Additionally, you should explain and provide examples of questions with loaded words or absolutes, including "always," "never," "would," and "should." Since issues of privilege are often involved when a witness is asked about preparation for a deposition or conversations about the case, the witness should learn the basic parameters of the attorney-client privilege.

The art of answering. Witnesses' ability to answer questions effectively can be aided if they are advised of helpful principles to guide the content and delivery of their answers. Witnesses must always be truthful. Deponents, however, should not volunteer information that is not necessary to respond to the exact question asked, unless, of course, answering only the opponents' question would convey a misleading impression. For example, a witness who is asked, "Isn't it true you shot Sister Mary Margaret with a .45 magnum?" should probably not answer affirmatively with no explanation, if Sister Mary Margaret had in fact pulled a bazooka on the witness first. Witnesses should stop talking when their answer is complete. Precise answers are conveyed in the shortest, simplest language possible (see "Questions and Answers"). Therefore, witnesses should not guess, embellish, exaggerate or "sell the case." Whenever possible, formal question and answer practice sessions can be used to properly familiarize a witness with the deposition format, ensure that they will be comfortable, and therefore be able to testify clearly, concisely, and, of course, truthfully.

Craig C. Martin and David J. Bradford are Co-Chairs of Jenner & Block's Litigation Department.

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Craig C. Martin

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David J. Bradford

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