5 minute read
How to Prepare Your Witness and Other Deposition Preparation Advice
Successfully taking a deposition or representing a client being deposed both boil down to one thing; preparation. There are many factors outside of your control in litigation, but adequately preparing your witness for their deposition is not one.
Specifically for plaintiff’s attorneys, client preparation should not be overlooked. Investing time on the front end will pay off in the long run, especially if your case goes to trial. In this post, we’ll share three tactics for preparing your client and witnesses for depositions.
What is Witness Preparation, and Why Should You Prioritize It?
There is a lot of advice out there aimed at helping you prepare your client and witnesses for depositions. Most advice starts the same with a warning that failing to prepare in advance is a big mistake.
Some attorneys dedicate hours to drafting questions to ask the opposing counsel’s witnesses and then spend only a few minutes preparing their client the day of the deposition. Taking the time to prepare your client thoroughly can make or break your case. Capturing a significant testimony could even lead to an early settlement offer.
Tips for Preparing for Depositions with Your Client
Keep reading and learn three steps you can take to work with your client to determine what depositions you should take and how they can be the most successful. We’ll also cover essential considerations for witness preparation when the proceeding takes place in-person, remotely, or with a hybrid approach.
1. Include the Witness in Deposition Preparation
Sit with your client and truly hear how they share their side of the case without your input or coaching. Ask them who they think might be beneficial to depose to add testimony and evidence to strengthen their case.
Use your experience and judgment to decide if you’d like to move forward with their suggestions. For example, if the cost of court reporting associated with depositions is a concern, consider seeking an agency that offers deferred or non-recourse payment plans to alleviate the financial burden solo practitioners, or small firms encounter while financing discovery.
Once all documents have been exchanged, keep in contact with your client as you’re identifying deposition dates with the opposing counsel.
Before the pandemic, depositions were traditionally held at an attorney’s office or rented conference rooms, but virtual depositions are becoming more common. One of the most significant challenges for depositions is arranging to take time away from their family or work.
To avoid scheduling headaches and delays, consider conducting your deposition remotely or with a hybrid setup. Hybrid depositions refer to scenarios where participants join from different locations. For example, the deponent, their counsel, court reporter, and the taking attorney enter the same conference room while legal support staff watches the videoconference from their firm office.
2. Schedule Time to Practice Before the Deposition
Once your depositions are scheduled, and your court reporter is booked, it’s time to prepare your client and witnesses. Schedule an appointment and plan to simulate a mock deposition where you’ll ask the questions, and they’ll practice their responses.
Remind them to read their previous testimony, if any, and other relevant documents before your scheduled time.
When they arrive at your appointment, explain the purpose of the exercise. Explain that you’re trying to simulate what the real thing will be like. A deposition is not just to find out what they know but also to assess how credible, relatable, or sympathetic they appear to a jury.
Explain that they should never guess or extrapolate in their responses. No matter how hard the taking attorney pokes or prods them, they should not give answers unless they are sure their response is true and correct.
Share some alternative phrases to convey that they do not know an answer or have enough information to speak on a topic. Talk through their legal rights and how they are expected to conduct themselves.
For example, court reporters request that witnesses give answers verbally versus nodding or shaking their heads. It’s helpful to get your witnesses used to this in advance.
Once you review these foundational concepts, put them to practice. Ask questions that test their credibility and composure. Don’t be afraid to simulate the experience, it may be awkward, but you don’t want them to be caught off guard with they are being questioned and things get tense.
Once you’ve completed the mock deposition, remind your witness of the proceeding’s day, time, and location. Instruct them to arrive early and turn off their phone or leave it in their car. Ensure they dress in conservative, plain, and professional clothes.
3. Take Extra Steps to Prepare for In-Person, Hybrid, or Fully-Remote Depositions
The pandemic necessitated a shift toward many attorneys taking depositions remotely to keep their cases moving. More than a year and a half later, many attorneys are skilled at taking remote depositions and have established protocols that streamline the process.
Now, some attorneys are returning to in-person or hybrid depositions. When deciding where to conduct the proceeding, consider the witness’ situation. For example:
- Do they have childcare responsibilities?
- Are they hourly employees?
- Would taking time away from their daily lives cause undue stress?
If all participants are vaccinated in the same city, and you can identify a day and time that works for everyone, in person may be a good option.
If you’re pursuing a hybrid setup, where participants join from multiple locations, ensure you have the appropriate logistical considerations in place. Your court reporting agency should help handle scheduling and coordination between parties, identify an area for in-person participants, and send videoconferencing equipment to those who need it. They can even send extra speakers and multiple iPads for evidence presentation if there are many people or large rooms.
You should never leave your witness alone in a room with the opposing counsel unless you’ve exhausted all other options. Always prioritize joining from the exact location as your witness; that may mean you both join virtually.
Essential Reminders for Deposition Witness Preparation
Following these three steps will help you get the most out of the depositions you take.
First, working with your witness before the deposition ensures they understand the purpose of the proceeding. Second, practicing the hard questions they may be asked will make them feel more and more likely to give a testimony they can stand by. Finally, ensuring they have the right technology and equipment will help preserve the accuracy of the record and aid in the production of trial presentation materials.
When you spend less time on the tedious tasks that go into discovery and court reporting, you’ll find you have more time to prepare your witnesses. Witness preparation is undoubtedly an investment of time, but it’s also an investment in your case.
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