I find defending depositions much more stressful than taking depositions. When I take a deposition, I’m in control. I can adjust my technique and strategy as necessary. And I know what I’m going to ask. When I’m defending a deposition, I don’t know what will happen. I have sat in depositions trying to keep a poker face as a witness rambles on (when what I really want to do is assume the fetal position). But I’ve been prepping witnesses for depositions A LOT lately. And I have some new thoughts about the process that I wanted to share.
First, I realized that my deposition preparation tool kit is filled with educational nuggets that I’ve picked up (okay, stolen) from other, wiser folks. One of my favorites, I learned from jury consultant Rick Fuentes, from R & D Strategic Solutions. When prepping witnesses for tough cross examinations, Rick uses the metaphor of a tug-of-war game. When the witness and the opposing lawyer are engaged in a tug of war, the jury knows that something important is happening. And just like a middle school fight, everyone runs over to watch. They start paying attention. They sense that the witness is struggling. And the witness can lose credibility in the process. How to solve the problem? Release the rope. Simply admit the bad fact. Agree with the lawyer. “Yes, I missed the deadline.” “Yes, I wrote this email.” Then, the struggle is over. The jury may not even notice the admission because there was no fight. And the witness can explain their answer on redirect. This method works, because no one can win a cross examination. But you can release the rope.
Another favorite, I learned from Merrie Jo Pitera, with Litigation Insights. She offers the perfect advice for witnesses who are so eager to be helpful that they offer testimony without factual basis or foundation. Your testimony, she says, is one small piece of a puzzle. We have lots of other witnesses, however, and they each get to testify as to their piece of the puzzle. If you stick to your small puzzle piece, you give us the best possible opportunity to build the correct puzzle. It’s a helpful metaphor, and I frequently find myself reminding loquacious witnesses to stick to their puzzle piece.
Second, I’ve learned the importance of style. I always knew substance mattered. But research in the field of medical malpractice really got me thinking about the importance of body language. In her Ted Talk, Harvard Business School Professor Amy Cuddy cites one study in which participants watched silent, 30-second video clips of doctors interacting with patients. Researchers then asked the participants how they perceived the doctors. Even with no sound, the doctors who were perceived as “not nice” (based on their body language) were more likely to be sued for malpractice. How does this play out in a deposition?
Last year, I defended a witness’s deposition. He was awful. He fidgeted in his seat. He was defensive. He became combative with the deposing attorney. When I watched the video, later, it was even worse than I remembered. So we got help. We hired a consultant to work with the witness. She had him plant his hands on the table and his feet on the floor. She got him to smile. But she didn’t touch the substance of his testimony. The witness testified brilliantly at trial. After his testimony, my opposing counsel approached me in the hallway and accused me of having the witness change his testimony since his deposition. I protested (and suggested that opposing counsel should have impeached the witness if that was the case). But my opposing counsel remained angry, certain I had acted improperly. The reason, however, that opposing counsel couldn’t impeach the witness was because the witness’s substantive testimony remained unchanged. My opposing counsel simply perceived the tremendous difference in the witness’s behavior and assumed it impacted the substance of the witness’s testimony. Because of the stylistic change, opposing counsel perceived the quality of the testimony differently.
Third, I am much more thoughtful about showing witnesses documents, during prep sessions, than I used to be. As a more junior attorney, I wanted to show my witnesses every single document that could possibly be placed in front of them. I worried that, if they were surprised by a document, it would be a failure on my part. But, of course, I always failed. Litigating cases with hundreds of thousands of documents makes it nearly impossible to predict all of the documents that will get shown to the witness. These days, I want to show the witness only a handful of key documents. I want the witness to work with me to create (authentic!) themes that they can return to when asked hard questions. I want them to know that I can’t show them every document, but we can discuss the categories of topics that they are likely to be asked about. And they will feel prepared to address those topics as they arise. Instead of giving the witness a fish, I’m hopefully better at teaching them to fish. And, at the very least, I’m not feeling bad about myself when my opposing counsel shows them a document that they haven’t seen before. That isn’t my goal anymore.
When I’m defending a deposition, I’m not the star of the show. I’m a coach. And I’ve learned that I need to work with the whole witness—I need to think about their style and substance. I need to help them think for themselves. I need to cheer for them. And because I keep getting better at preparing witnesses, my witnesses seem to be getting better too.