Making the Most of Your Case

Tips for Great Witness Preparation for Depositions

No matter what your witness’ level of experience, education or expertise, testifying at a deposition can be stressful and intimidating.  Too many lawyers underestimate how challenging many witnesses find testifying.  Answering unexpected questions, misunderstood topics, assumptions that they must have answers, objections, arguments, are all opportunities for a deposition to go wrong, if your witness isn’t properly prepared.  

“For lawyers, depositions are an everyday occurrence. 

We fall into the trap of patting our witnesses on the back

and telling them to just tell the truth.  Witnesses need more than this to remain calm,

comfortable and compliant during depositions.” 

What Industry Professionals Say: 

  1. Don’t forget witnesses are nervous.  Many have never done this before.  Always begin by reminding the witness that you will be sitting right next to them when the time comes to give testimony.  Let them know it is ok to say “I don’t know” and tell them they can always take a break.  Putting your witness at ease with testifying can be the biggest win when they actually get to testify.  
  2. Tell your witness what to expect.  Because lawyers conduct, defend and attend depositions so frequently, we tend to forget that other people don’t.  Sometimes the biggest fear people have is fear of the unknown.  Let your witness know what to expect, down to the smallest detail.  Where will people sit, who will do the questioning, what is everyone’s role, will they be sworn in, how long will the deposition take?  All of this type of information will add to a client’s calm demeanor on deposition day. 
  3. Go over proper behavior and presentation.  Have you ever had a really uncooperative or belligerent witness?  Or a defiant and defensive witness? Or the witness that feels they need to answer every question?  Not all witnesses understand the importance of the impression they make on the other parties at a deposition. Your witness is being judged not just by their testimony but by their demeanor as well.  Every deposition ends with a report that says whether the witness appeared truthful and forthcoming or dishonest and lacking credibility.  Explaining this to your witness can help bolster the value of your case by having your evidence cast in the best light. 
  4. Review likely questions.  Prepare your witness, not to feed them information, but to make sure they are ready for the questions being asked.  Help the witness understand the best way to answer the questions being asked and remind them that with deposition testimony, sometimes, less is more. 
  5. Don’t forget the paperwork.  We can get so caught up in talking to the witness about their testimony that we forget to prepare them for the likelihood that certain evidence will be introduced to them at trial.  Being aware of what evidence has been exchanged with the deposing party is essential to properly preparing your witness for testimony.  
  6. Prepare for damaging testimony.  If you know there is a weakness in your witness’ testimony, address it with the witness beforehand.  Make sure they understand that they must testify honestly and will be under oath and then talk to them about how to answer questions that may be damaging to your case.  Sometimes a witness will try to evade a topic only to leave the impression that their entire testimony lacked credibility.  
  7. Warn the witness.  Some attorneys can have an aggressive style.  Prepare your witness for what may be the temperament of opposing counsel.  If you’ve had experience with a particular attorney in the past, let your witness know what to expect.  Has counsel been courteous and professional or aggressive and threatening?  Giving your witness a heads up on the expected demeanor of counsel and giving them the tools to handle that behavior will make your witness more prepared for what is ahead and result in more favorable testimony. 
  8. Share strategies with your witness:  Let your witness know that there are questions they don’t have to answer and some questions they do, by law, have to respond to.  If your witness has a prior criminal or medical history that may embarrass them or which may not be favorable to their testimony, prepare them for the questions in advance. Let them know what they must answer and what they don’t have to.  Remind them to take a pause before answering a question so you can object to inappropriate questions, especially when the questioning is about dangerous information.  
  9. Keep the answers short and sweet.  Inevitably, at some point in every deposition, witnesses feel they have something to explain.  Drive the point home that effective and concise answers are always best.  Yes and no answers, where appropriate, are all the witness needs to lawfully and honestly respond to questions.  
  10. If your deposition is virtual – prepare the witness for that.  So many witnesses in the age of virtual testimony neglect to prepare in advance.  If it isn’t possible for your witness to be with you in your office, make sure your witness has access to the proper technology before the testimony begins.  Let them know that counsel will want to see their face during testimony (and not their ceiling, their emoji or their TV)  . It’s best if your witness can testify from a desktop or laptop so that the visuals and sound are clear.  If your witness doesn’t have access to those, and needs to use a tablet or phone, make sure those devices are fully charged and secured on a firm surface allowing the witness to testify into the camera and the microphone. 
  11. What if you can’t prepare your witness?  There are circumstances where a witness can’t be prepared for testimony.  Sometimes witnesses are unwilling to meaningfully prepare for testimony.  In those cases, try to provide what little guidance the witness will accept and be prepared to carefully and cautiously advocate for your witness when it comes time to testify. 
  12. Always remember, the testimony offered today can have a big impact on the value of the case when it comes time to settle.  Remind your witness that it may be in their best interest to be prepared, present well, remain calm and answer truthfully.  

October 13, 2021