Preparing witnesses for deposition is not just my vocation; it has been a calling for decades over hundreds of trials and thousands of witnesses. I know that after absorbing the following ten steps that you will be better at preparing witnesses, even if you have prepared hundreds of clients. Further, your clients will be the best possible witnesses they can be deposition. And who does not deserve that?
Identify the Witness Type
There are two kinds of witnesses in a deposition preparation session. I do not mean expert and lay witness. There are only inexperienced and experienced witnesses. The inexperienced witness has never been deposed and has never been in court. I like working with them best. They have no bad habits because no attorneys have poorly prepared them in the past. They have not been thrown to the lions with no preparation save a trip with an attorney in an elevator on the way up to the deposition room. There are no nightmare experiences in the deposition room which cause deposition PTSD. Finally, there are no outlandish fantasies of having won a case by themselves single-handedly with their own unique brand of brilliance.
And then there are the experienced witnesses.
Identify the Attorney Type—Counselor, Know Thyself
There are two kinds of attorneys when it comes to preparing a client for deposition: talkers and doers. In my 33 years as a trial consultant, I have been in rooms with both kinds.
Talkers generally start at least three sentences with the following, “When I prepare witnesses, I always tell them….” Talkers love to lecture. They believe that unless it comes out of their mouths and is exactly the script the sky may fall down. Doers spend at least 25 percent of any preparation session role playing. They actually allow the witness to try out what deposition is going to be like by playing the role of the deponator (a word I have created to refer to the attorney who takes a deposition—feel free to use it with your witnesses).
There are some things in this world, like the history of 16th Century French poetry that are best learned through talks or lectures. There are others, like having your deposition taken, that are best learned through doing. Doing activities are best learned through doing. Think about it. Would you rather have the life guard who got the A on the written test but never swam a stroke dive in to rescue you if you are drowning, or the life guard who never read the book, but who swims like a fish?
If you have identified yourself as a talker, it is time to develop yourself into a doer. If you have identified yourself as a doer, it is time to up your talking/doing ratio to at least 50 percent doing.
Abandon Your Magic List, All Ye Who Hope To Enter Here
A magic list is a lecture that an attorney believes bears supernatural qualities because it is filled with the attorney’s wisdom. Talkers believe that by sprinkling their words of wisdom on the head of the client, that information will be miraculously absorbed into the brain rendering the client perfect. I have yet to run into an attorney who does not have one—even the best doer cannot help but wax poetic when it comes to their particular list of rules and regulations. The magic list I often hear goes something like this from the witness’s point of view:
We are now getting ready for your deposition. A deposition is a…don’t answer if you don’t understand the…take your time before answering the…for gawd’s sake don’t volunteer…if you don’t know, if you don’t remember just…one time I had a witness who didn’t listen to me—of course, he is dead now and his wife is in a mental hospital and his children are on welfare…don’t worry, I’ll be right beside you the whole time.
If at this point in the reading you are thinking to yourself, “But I always” or “but I must” or “do you want me to lose my license?” do not despair. There are, indeed, many rules and regulations that govern the taking of a deposition. However, you can learn them in a vacuum. Remember how you learned how to play baseball or soccer when you were a kid? By sitting on the sidelines and praying you would never get put in? Of course not. Just like in soccer or baseball, rules and regulations are much better taught in the context of a rehearsal game.
Prepare to Play the Rehearsal Game
At this point you may be thinking, “Sure, I do role playing a little at the end of the session. Why should I change?” For instance, what about all that useful advice gleaned over years of practice and handed down from one generation of attorneys to another like burnished golden truth? Advice is meaningless unless the person needs that specific piece of advice in the magic list lecture. Let us take a tried and true statement: “Think before you answer.” Of course, not only are you teaching in a vacuum for the witness, but also for yourself since you do not know how the person testifies. But what if the person already thinks before answering, thinks they think before answering, or has no idea of how to think before answering because the person has never thought before answering a question in the span of their entire lifetime? It does not do much good to hear this piece of burnished gold in a vacuum?
Next we come to filling the witness’s head with answers to nonexistent questions in the attorney’s words. There is very little I have experienced that is more painful than a car wreck victim with a high school education attempting to repeat, “It is my habit and practice to turn on my signal while approaching an intersection” as if going over a bible verse that is going to get him a good conduct medal from the bishop. Answers outside of a rehearsal context are meaningless. A person has to experience hearing the question and answering it—perhaps imperfectly, but perhaps in a way that is many times better than the pre-planned attorney answer. This is question and answer in context, not in a magic list vacuum.
Instead of polishing your magic list, polish a list of questions you believe the deponator will ask your client.
Allow Plenty of Time
Make sure the time you have scheduled to meet is two hours at the minimum, four hours ideally. Make sure the date on the calendar is ideally one month before, at minimum two weeks before, the date of the deposition. This allows you maximum time to learn the most important things you need from this session:
• How does this person learn best?
• Once you know how this person learns best, how quickly does this person absorb what needs to be learned for the deposition?
• How much more time and how many more sessions will it take for this person to learn all the information between now and your final witness preparation session which is scheduled between 24 and 48 hours before the date of the deposition?
• Can you handle this on my own or do I need the help of a trial consultant to prepare this witness? Because you think otherwise, defending this deposition is going to be like a white knuckle ride on the roller coaster for me.
Time is so important. So many attorneys wait much too long in the game to work with a witness. So many do not allow enough time before the deposition is to be taken. And then there is the matter of only scheduling an hour or so when so much more time is needed for the witness to be successful. We all know that the more successful the deposition, the more likely the settlement will be in your favor. We all know that the more successful the deposition, the better the deposition transcript will be. A good transcript means that trial is not a clean up job over something (or many things) that should never have been in the deposition transcript to begin with.
Make Your Rehearsal Space “Life Like”
Make sure that you have a chair and table that approximate (if the deposition is taking place in another office) or actually are (if the deposition is taking place in your office) the table and chair the witness will be using at the deposition.
Make sure the camera is set up across from the witness, behind the head of the examiner. Even if you will not videotape the deposition, the camera is an undeniable learning tool for your session.
Make sure that the room you are going to use for witness preparation is a comfortable temperature. If you are untrustworthy in this area, ask someone who knows better than you do.
Make sure there are water, coffee, juice, and soda-pop. Make sure that the bathroom key is working and available.
Make sure that there is a box of tissues.
Identify What Kind of Learner Your Witness Is
Greet the witness. Invite the witness to sit down. Then, without further ado, say something along the following line, “Do you have any questions, concerns, thoughts, or even fears about having your deposition taken?” Through the expression of the person’s concerns, you will discover the learning style of your client and you will know where to start the learning process for this witness. They fall generally into four categories of learners.
Before we examine these answers and what they tell you about your witness, a word of caution. There is a very good chance that all of these will be covered at one point or another in every witness’s first preparation session. The answers show you where to begin. If you do not begin the learning process at the point where the witness needs to begin, the witness will not remember as much information. Ultimately it will take you more rather than less time to move the witness where he or she needs to be. The fact that every witness is different from the last witness you prepared for deposition is something to be embraced and celebrated. It means the death of the word “always” in your deposition preparation vocabulary.
Now, let us examine the possible answers to the above question. The first category of answers will follow this pattern: “I am scared that he is going to make me say something that isn’t true and I’ll tank the case.” This is an emotional learner. This person’s first concerns are emotional. Other examples are “Is the defendant going to be there?” and “Is the lawyer taking the deposition mean?” You must start this learning process with emotional reassurance. Answer the question truthfully and then ask, “Anything else?”
A factual learner would address the question in the following manner: “The police report has two lines reversed on page 7.” This person needs to start with reassurance about the substance and content of the case. Other examples are “does the contract say 1979?” and “I re-read the letter you sent me and someone misspelled my mother’s name.” It is tempting to pour everything about the substance in the case all at once. Again, just answer the one question and then ask, “Anything else?”
Witnesses in the third category will answer: “Is this the room? Is this what the room is going to look like?” These witnesses are practical learners. These witnesses need you to start out with the agenda, the room set up, or something physical. Other examples are, “How long is this going to take?” and “What is the schedule for the day?” and “Where am I supposed to sit?” Again, just answer the one question and then ask, “Anything else?”
The final category of witnesses respond: “I don’t see why this deposition is scheduled for a whole day. What questions can they possibly ask that could take whole day?” This is the creative learner. This witness needs to believe that you are making up a unique set of witness instructions just for that person. This person is the kind of learner who only learns when they make something new. This person is more likely than not someone who will volunteer like crazy. This person envisions a deposition to consist of an attorney from the other side simply saying, “Just tell me all about it” followed by 15 minutes—30 minutes tops—of the witness blabbing on about the case. Answer the concern by telling the person that you will help them be in charge in the room in a very special way and that you are going to teach them a system that will allow the deposition to take as little time as possible. Again, just say “Anything else?”
In addition to the learning styles, you may run into some answers that alert you to “issues.” For example, “I’m not afraid of some lawyer, if that’s what you mean” indicates you have a fighter on your hands. Or, “Afraid! I’m looking forward to this! I can’t wait!” indicates you have a crazy person on your hands. If you have a person who is “experienced” that is, has had their deposition taken before, ask something along the lines of “Tell me, what is the good news and the bad news for you about getting your deposition taken? In other words, what do you think you were very good at and what do you think didn’t go as well for you?” Listen for the bad advice, poor preparation by your predecessor, nightmare situations, and your client’s overconfidence. Keep these nuggets of information in your head. You will need them for teaching and reassuring purposes during the rehearsal process.
At this point in the process, you at the very least have identified the way this particular client learns best (emotionally, factually, practically, creatively). You have also answered all the “Anything else?” questions. You are now ready to begin.
Start Rehearsing!
Turn on the camera. Put on your costume as you play the role of the deponator. Start questioning.
You may not realize that you need a costume to play the deponator, but you do. That way you can ask questions in the role of opposing counsel and still give advice as yourself, and the witness will actually know who you are. Ever had a witness say to you, “Wait a minute, are you being my lawyer or the other lawyer?” I have developed hats for this purpose that all the attorneys with whom I work have the opportunity to use: a black hat for the “bad lawyer” and a white hat for the “good lawyer.” You do not have to buy my hats or use my system, but you do need to find a creative way to allow the witness to know what role you are playing at any given moment in rehearsal.
Start by question the witness for 10 minutes in your deponator costume. Stop. Change our of your costume. Play back and discuss with the witness what you are both seeing. Keep doing this over and over, subject by subject. Start with 10 minute stretches and build up stamina with your client so that the sessions get longer and actually simulate the amount of time that will be spent at any sitting.
Revel in the fact that all the wisdom you have gotten from your years of experience and the experience of others—formerly known as your magic list—is being covered point by point in your preparation either as praise, “I usually have to tell witnesses to slow down, but you already do that perfectly!” or as helpful hints, “Do you hear that extra word I threw in there now that you get another chance to hear the question?”
Teach Your Witness the Forms
“The Forms” is a concept originally developed by Dr. Martin Peterson, a trial consultant from Lincoln, Nebraska, who practices with his daughter, Jill Holmquist. I have expanded upon them, but Martin is the man who created them. There are two kinds of forms:
• Analyzing the Question
• Physical
Analyzing the Question involves the witness taking the question asked by the opposing counsel in the deposition and putting it through a series of steps in order to come out with the correct answer. The steps are:
1. Do I understand the question? (If the witness does not, all the witness says is, “I don’t know what you are asking me.” If the witness does understand the question, move on to step 2.)
2. Do I know the answer to the question? (If the witness does not know the answer to the question, all the witness says is, “I don’t know.” If the witness does, move on to step 3.)
3. Do I remember the answer to the question? (If the witness does not, all the witness says is, “I can’t remember right now.” If the witness does remember the answer to the question, move on to step 4.)
4. How do I want to answer the question? (The witness thinks silently through the answer and then answers out loud.)
Why these four steps in this order? Let us look at each one in more detail below.
Do I Understand the Question?
“Do I understand the question?” requires the witness think through many issues which makes a question good or bad. The idea is to never answer a bad question, i.e., a poorly phrased or misleading question. Therefore, you remove all the bad ones immediately with the phrase: “I don’t understand what you’re asking me.” The following is a partial list of how this first question is used by witnesses:
• Does the witness understand all the literal words of the question?
Example: Where were you prior to accepting the terms of the agreement?
• Does the witness understand the concept of the question?
Example: How do you make one of those?
• Is there something inherently wrong with the question?
Example: How old is your son? (the witness only has a daughter)
• Is the question too broad?
Example: What did you do in 1991?
• Is the question compound?
Example: Where and when did you meet?
Almost everyone can use “do I understand the question?” as the first step. However, this first question can be adapted if the witness has a particular idiosyncrasy in learning, listening, or processing. For example, I have used the phrase “what is the question?” instead of “do I understand the question?” for people who do not listen all the way through the question. I have used the phrase “what is he asking me?” for other casual listeners.
Do I Know the Answer to the Question?
Once the witness understands the question that is asked, the witness has to have the knowledge to answer the question. To illustrate this concept, I often ask the witness “what kind of china should The White House serve dinner on tonight?” Most everyone realizes that they do not know what the choices of china in The White House are, so they do not know the answer to the question. This step keeps witnesses from answering questions that they do not know anything about.
Do I Remember the Answer to the Question?
The witness understands and the witness knows, now does the witness remember? Depositions are filled with witnesses who guess at what they do not remember because they believe that they should remember even when they do not.
This step allows them to say, “I don’t remember right now” when they do not remember. I sometimes illustrate this one by asking, “What was the kid who sat behind you in the third grade wearing on the first day of school?” This works brilliantly for everyone who did not attend a Catholic school with uniforms. I then can illustrate having a memory refreshed by saying, “Now, if I showed you a snapshot taken of your third grade class the first day of school you might look at the kid sitting behind you and absolutely remember what he was wearing the first day. Or the picture might not do anything to jog your memory. That’s just fine.”
How Do I Want to Answer the Question?
In this step, the witness thinks through and answers the entire question silently before speaking the answer aloud. This keeps the answer short, sweet, and succinct. This cuts down on volunteering almost completely. This keeps yes or no questions being answered yes or no without elaboration. This allows damages question to be answered fully because the answer is responsive to the question, “How has your life been affected by what happened to you?”
Benefits to Analyzing the Question Form
There are many other benefits to analyzing the Question Form. The attorney has time to think. The attorney has time to make an objection on the record. The witness sets the pace of the deposition since it takes time to go through the questions. The witness is able to remain rational instead of flying off the handle by thinking first and speaking second. The deposition is much more likely to remain under the control of the witness than under the thumb of the attorney.
Sometimes a particular witness needs a variation of the Question Form. There are easily as many variations on the Form as there are learning differences. I have had people who are purely visual and do not read think through the questions as images rather than as words. With a black marker on a page of butcher block I have created chaos for “understand,” a box of knowledge for “know,” an open book with a blank page for “remember,” and a set of three stepping stones for “how to answer.” I have added a fifth question from time to time, such as “what does my gut say” for someone who doubts the answer which comes to mind when that answer is always correct.
What’s the Physical Form?
The Physical Form helps you teach your witness what to do physically in the room. Except in cases where it is not physically possible due to injury, I direct witnesses to sit up. I like them with their hands on the table clasped lightly. I like them leaning forward in an attitude of “I can’t wait to answer questions.”
But there is so much more to the Physical Form than how to sit.
I generally have the witness look at the mouth or necktie or hollow of throat of the deponator. This rids the witness of any of the burdens of eye contact with the opposing counsel. The witness will not try to please, fight with, or follow the opposing counsel because there is no opposing counsel. There is just a necktie or a set of pearls and a bunch of words to be thought through with the Analyzing the Question Form.
When the witness has the answer to the question (“I don’t understand” or “I don’t know” or “I don’t remember right now” or “1979”), the witness turns to the court reporter (transcript only deposition) or the camera (videotaped deposition) and gives the answer. Then, when the witness is ready for the next question, the witness’s eyes go back to the knot of the tie or hollow of throat or mouth of the opposing counsel.
The Physical Form has many, many benefits. The Physical Form takes the deposition out of the hands of opposing counsel. It prepares your client for testifying in court where instead of testifying to the camera or the court reporter, the witness will be testifying to the jurors. It allows the witness to take care of the court reporter (great instruction for transcript only deposition) or talk to someone they love (great instruction to get great demeanor for video taped deposition). This allows the witness to have the kind of great demeanor that has court reporters saying during breaks, “I love her! I just love her!” about your client.
Wardrobe Must Be Shown to You before the Deposition
Your concept of sweater set and her concept of sweater set might be totally different. You are thinking, “School Girl,” and she is thinking “Britany Spears.” Warm colors, appropriate clothing, how to deal with tattoos—this is a subject unto itself and beyond the scope of this article.
Conclusion
The advice I have given you takes time and practice to learn and assimilate. Why should your clients be the only ones learning through doing? But once you follow and truly master these 10 steps, your clients will become the witnesses you deserve. But more importantly, your clients will have the attorney they deserve.
