Litigators

Preparing Witnesses For Trial, Rather Than Deposition, Testimony

Trials are different than depositions. Make sure that your witnesses understand that.

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What do you tell witnesses during a deposition preparation session?

As I say in The Curmudgeon’s Guide To Practicing Law:  “Listen carefully;  pause; answer narrowly.”  (And tell the truth.)

That’s it.  The rest is commentary.

At a deposition, you’re doing damage control.  Your witness is telling the other side what you’ll say at trial; that doesn’t help your cause.  Your witness is making admissions against interest; that doesn’t help your cause.  Your witness is saying the things that will be used against you on summary judgment; that doesn’t help your cause.

So deposition defense is doing your best to avoid trouble.  The way a witness can avoid trouble is to give the shortest possible truthful answer to a question.  There’s no reason to give the other side extra ammunition.  Thus, you instruct the witness:  “Listen carefully; pause; answer narrowly.”

(In depo prep, it may make sense to talk about the Fair Witness in Robert Heinlein’s book Stranger in a Strange Land.  When asked the color of a house, the Fair Witness says, more or less:  “That house appears to be white on this side today.”  The shortest possible truthful answer to the question.)

But cross-examination at trial is a whole other story.  Your witness who has been told to “listen carefully; pause; answer narrowly” and “give the shortest possible truthful answer to the question” must be retrained for cross-examination at trial.

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Now, you’re playing offense.  You’re trying to convince the jury of the justice of your cause.  If the witness doesn’t speak the helpful words at trial, the words will never be spoken.

Thus, at trial, the advice is not to give the shortest possible truthful answer to the question.  Rather, tell your witness about the “headline theory.”

The cross-examiner asks the witness a question.  What should the witness do?  Give the headline.  Immediately.  Blurt it out.

The cross-examiner will be struggling to control the witness.  A good cross-examiner will ask only leading questions, inviting yes or no answers.  The questioner is trying to constrain the witness.

So don’t be constrained!

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If you’ve got something good to say, say it.

Don’t start with the small points and slowly build up to the important stuff.  You’ll be cut off long before you get to the end of your multi-paragraph answer.  Rather, start with the headline.  Then, you can slowly retreat to the less important stuff.  Make sure you get your story out.

Thus:

“You do not have a college degree, is that right?”  (Good question.  It’s leading, and it permits only a yes or no answer.  The questioner knows that the answer is yes, because the questioner has taken the witness’s deposition.)

“Yes.”

“You have never been trained to recognize if a person is drunk, is that right?”

“That’s right.”

“Then how do you know that Galt was drunk on the night of the fourteenth?”  (Bad question.  Open-ended and permits the witness to say whatever the witness likes.)

“I’ve been a bartender for 23 years.  I’m damn sure I know a drunk when I see one.”

Blurt it out!

Trials are different than depositions.

Make sure that your witnesses understand that.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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