Litigators

Witness Preparation For Depositions And Trials Are Not The Same

We need to educate our clients on how these things really work and prepare them accordingly.

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To help our clients win, we need to help them understand how depositions and evidentiary hearings work, that they are very different animals, and that means that preparing for each are very different undertakings.

Depositions should be easy, right? As a witness I defended at a deposition who was a high government official (and who was thus used to answering reporters’ questions) once told me, “I have nothing to hide so I don’t think we need to spend much time preparing.” He also mentioned how many times he testified before government bodies or even at trial so while he actually had rarely been deposed, he thought he was fine. Against my (repeated) advice, the official did not let me spend much time preparing him.

Then, not five minutes into the actual deposition, he was so unnerved by the scoundrelly adversary that I had to ask for a break to go into another room with my client. The official was furious at how difficult the deposing attorney was, protesting, “Well, in all my years, I just never . . . .” and trailed off. Blunt but respectful I said, “Well, now you have. So please hear me out on how to handle this.” After a longer-than-anticipated break, the client, very smart and informed to begin with, took my advice, and, often with bitten lip, did just fine through a full day of deposition.

This example shows how even sophisticated and experienced witnesses can find depositions unnerving and very much not easy (and very different than a hearing or trial). Frankly, depositions can feel downright bizarre: you’re stuck in this conference room with the bad guy sitting across from you whose only goal is to get bad stuff on you. In a private litigation this unfortunately is not at all about truth. And while there is a transcript, there is no judge to jump in at any time, nor jury or panel of arbitrators to be turned off in the moment by unfair or poor questioning.

We need to educate our clients on how these things really work and prepare them accordingly. There is no winning over your adversary in a deposition. You will not convince him his case is garbage and he should settle. You don’t get extra credit for looking smart. And you’re not there to tell the whole story. To a significant degree, while your witness must answer truthfully and accurately, in an individual deposition you want to give the other side as little new information as possible. It is for that reason that I say an ideal deposition transcript (from the perspective of the defense) would be one where every answer from the witness is either, “Yes,” “No,” “I don’t know,” “I don’t remember,” and “I can’t answer that question the way you asked it.” Of course, that’s a textbook ideal; it doesn’t happen that way, and if the questions are asked correctly, it won’t. But I provide this direction to clients to illustrate that they are not narrators in a story, but there to answer only the questions posed to them and get out on the other side.

A trial is completely different. However small the witness or short her testimony she is there to advance some story in front of those — the jury, the judge, or the arbitrators — who will actually decide the case. As such, the witness wants to help the deciders understand what happened, maybe fill in gaps, and somehow get the story out. And — given the audience — the deposing attorney will not be able to engage in typical deposition question shenanigans so the witness can often keep her guard down a bit more.

These very different arrangements and goals in these very different types of testimony mean very different preparation. For a deposition in particular, you must educate your client on how the deposition works and its goals. Everyone has seen one or a hundred movies where there is a trial. Depositions are rarely shown in film or TV, and, even more than trials, are generally presented inaccurately. A “good” deposition from a deponent’s perspective will be boring and uneventful, and not good for an audience. As such, expect ignorance of how depositions work and what the goals are of a deponent and prepare accordingly.

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Trial preparation is different. While I like hours of deposition prep with a given witness, my colleagues and I generally want multiple days of trial preparation. This is their chance to tell a story, to get out why we win. This can be easier than deposition preparation since the testimony they give will be more familiar and natural, but you need to warn your clients to be ready to spend a lot of time.

A good trial lawyer who actually tries cases knows how things work at a trial so to prepare her witnesses for trial. But that same trial lawyer will prepare her witnesses very differently for depositions to set up victory at trial later on.

john-balestriereJohn Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

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