This month, the King County Bar Association Bar Bulletin published Thomas M. O’Toole’s excellent recommendations on how to prepare a deponent. Mr. O’Toole is the President of Sound Jury Consulting, and his following advice is well worth reading and heeding:
The deposition performance of a key witness is critical to the outcome of any case. Summary judgment motions are often won or lost on the testimony of central witnesses. Even when the case survives summary judgment, unfortunate behavior or answers in depositions can have a detrimental impact at trial, leading jurors to dislike or distrust the witness, which lowers their motivation to want to find in favor of the party that witness represents.
I often receive calls from attorneys who are looking for a witness preparation session just before trial for a difficult witness. The typical explanation is that the witness performed poorly in his or her deposition and needs to improve for trial. These calls are frustrating because, while I am happy to help, there is no need for a witness to perform poorly in a deposition. There are a variety of strategies attorneys can use to position a key witness for success in his or her deposition. Unfortunately, these strategies are often not used and attorneys instead rely on deposition preparation sessions with witnesses that create more problems than they do solutions.
The purpose of this article is to discuss the right and wrong ways to prepare a witness for a deposition. All key witnesses should go through this process. Attorneys should avoid making an assumption that a witness will perform well in a deposition because he or she is smart, sociable, or a good communicator. The trenches of daily life vary greatly from the trenches of a deposition. Skill sets that make a person successful in daily life do not necessarily translate to or prepare a witness for a deposition. There is no greater example of this than former President Bill Clinton. Clinton’s defining trait was his communication skills. He was a smart, charismatic man who was known for his ability to adapt to just about any situation and demonstrate excellent communication skills in the process. When he was deposed in the Paula Jones sexual harassment lawsuit, most expected a solid performance. The American Spectator described Clinton as the kind of witness “who would strike fear into the hearts of opposing lawyers.” However, his performance was anything but. The American Spectator went on to describe him as “an unsophisticated witness, revealing a desire to please the opposing lawyer, and telling prepared stories that suggested he had lots to hide.” In order to understand the right ways to prepare a witness for a deposition, let’s start by looking at the wrong ways to prepare a witness. The typical preparation session between a witness and an attorney involves both of them sitting down in a conference room for a few hours or more and talking through the case. The attorney probes the witness on issues the attorney needs to know more about and gives the witness all sorts of advice on how to talk about different issues in the case. The session usually ends with a homework assignment for the witness requiring him or her to review a bunch of documents and try to remember an unreasonable amount of items. There are several reasons this approach fails. First, the witness will not remember the majority of what he or she was told. All of the studies on recollection suggest the witness will remember about 10-20% of what he or she was told in that session. Second, the witness is not given the opportunity to practice the testimony, which is critical. Witnesses need the experience dealing with all of the standard attorney tricks. They learn this through actual practice. Third, all of the tips and advice from the attorney can be overwhelming. Depositions are intimidating enough and now the attorney has piled on all sorts of “important” things the witness “must” remember. In short, this cramming approach does not work and can often backfire. Witnesses perform poorly when they feel overwhelmed and not in control. The difference between an ineffective and an effective prep session is what I would describe as an “attorney-centered” approach versus a “witness-centered” approach. The former focuses on the attorney’s needs while the latter focuses on the witness’s needs. The fundamental goal of any prep session should be giving the witness comfort and confidence, which are essential to a successful performance. Everything else derives from these two items. I often joke that witness prep sessions are actually therapy sessions. In this respect, the joke is half-true. Comfort and confidence empower a witness to see clearly and take control of what his happening in the deposition. Let’s now look at the practical strategies for giving a witness comfort and confidence. A whole book could be written about preparing witnesses for their depositions. It is difficult to limit the discussion to the length of an article for the Bar Bulletin since there are so many tips and tactics for improving a witness’s performance in deposition, but hopefully these tips provide attorneys with a good springboard for an effective witness preparation session. The key is practice. It is this experience and feedback that will best arm your witness for success in a deposition. Thomas M. O’Toole, Ph.D., is president of Sound Jury Consulting, LLC, in Seattle. You can learn more about Sound Jury Consulting at www.soundjuryconsulting.com. Reprinted by permission of the author Thomas M. O’Toole. Originally published in the February 2015 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association. [1] Michael Craig. “He Talked Too Much Mr. Clinton was an ideal witness–for the other side.” The American Spectator. June, 1998.
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