By: Founding Partner Amy M. Stewart
“Get the fundamentals down and everything you do will rise.” – Michael Jordan
Depositions are primetime because they can make or break your case. When you are preparing witnesses to win at depositions, your litigation fundamentals matter. The following are the steps I go through to step up as a leader and get our witnesses ready for depositions.
Lead Witnesses to Succeed in Deposition
“Leadership is a matter of having people look at you and gain confidence, seeing how you react. If you’re in control, they’re in control.” – Coach Tom Landry
For experienced practitioners, deposition preparation is second nature. However, do not lose sight that every witness will bring some level of anxiety to the prep session. Further, it is probably the first time you have spent time with the witness. You get one opportunity to make a first impression and your mission should be to show up as a leader. Here is how I prepare so I can gain the respect of the witness and get to work on preparing him to succeed at the deposition.
A. Learn About the File and Witness.
Deposition preparation is a team building exercise – you are the coach and the witness is the all-star recruit. As coaches, our mission is to gain the players trust so we can push our game plan – key facts and themes – throughout the deposition. Litigators must earn the witness’s trust or they will not follow your suggestions.
Deposition preparation is not your time to “warm up” by getting up to speed on the file. The only way to become trustworthy to the witness, be it a fact witness, corporate representative, or an expert, is to know your file. Witnesses expect you to lead them through this process. When you are using the prep session as your personal study time, everyone loses. Fumbling over the facts, not identifying the important players in the dispute, or not doing your research on your witness will negatively impact your credibility. If you are not confident and in control during deposition preparation, your witness will show up the same way at the deposition.
B. Examine Strengths and Weaknesses of the Case.
Deposition preparation may be the litigator’s first time to confirm her impressions of the dispute, identify key documents, and test potential trial themes with the fact witnesses who are knowledgeable about the dispute. Like a coach developing her game plan, litigators must draw out the strengths and weaknesses of the case as well as of the witnesses. Each member of your deposition team needs to work through those strengths and weaknesses at the preparation session. You cannot maximize strengths and minimize weaknesses if those have not already identified and vetted.
A practical exercise to do with the witness is use a white board to list the strengths and weaknesses of the case with the witness to refer to during prep and the life of the case. Then, go through the weaknesses to determine if there is any evidence or other witnesses who can minimize the risks. A witness must be trained specifically regarding how to deal with these sticky issues head on, and it takes repetition for the witness to feel comfortable responding, or deflecting. Further, the witness needs to get as comfortable as possible with discussing the bad facts. Again, showing up at the deposition prepared and knowledgeable is critical to establishing credibility, sharpening your themes, and empowering your witness to perform at a high level even through difficult questioning.
C. Anticipate Your Opponent’s Goals.
Sports taught me that as a trial attorney you need to get real (and fast) about understanding your case’s weaknesses, especially if the issue is your witness. Your opponent’s job is to exploit those weaknesses. Take the opportunity to change uniforms and see the case from your opponent’s perspective.
Witnesses are in a much better position to advise on what happened years ago and who the important players are. So in deposition prep, I brainstorm with the witness about what they believe opposing party’s attack strategy will be and identify their concerns about their testimony and the case. Then as the strategist, organize the evidence to protect your client’s interests and witnesses as much as possible. Be forewarned, you should be prepared to deal with the witness’s anxiety when you discuss these touchy subjects. Remember, this witness is your teammate. Be empathetic and give them space to vent and to work their way those these issues. The witness is the one on the line testifying, not you, so show some grace.
D. Draft Your Game Plan.
When I coached, before we finalized any game plan, we evaluated the opposing team, its coaches, its players, recent game footage, and talked to other coaches to prepare. We even evaluated the referees so we would know if they would let us play or call a tight game. All of this information was key to thoroughly preparing for game time. I go through the same process when working up my cases. Prior to deposition preparation, I draft a deposition game plan, which looks like a litigation memo you would send to a client, that puts us in the best position to win. It includes the following information, some of which will be completed during the deposition preparation:
1. Procedural history
2. Upcoming Deadlines
3. Factual Recap
4. Where we are in the case, i.e. started fact deposition stage
5. Strengths and weaknesses
7. Important witnesses and proposed testimony
8. Judge’s profile
9. Go to documents
10. Deposition goals
Additionally, I provide the witness with an agenda for the meeting. At the beginning of the deposition, I share the agenda and the deposition game plan with our team. Providing the agenda and deposition game plan is an ice breaker that helps to focus the witness on what we need to accomplish and build trust with a new witness. If you are preparing a witness you already know, they will appreciate following the structured routine. If it’s a new acquaintance, they will appreciate understanding what is in store for the day. After working through the game plan, you can transition smoothly into the tougher part of the deposition preparation – Q&A drills – which I will discuss in a future article.
Preparation does not only mean knowing the case facts. To truly lead, we need to be empathetic to our witness who may be extremely nervous or anxious about a process we take for granted. Providing structure around the deposition preparation establishes you as the leader. It provides a sense of normalcy, lessens stress, and allows your witness to focus on the skills necessary to testify lights out at the deposition.