Getting More Out of Your Deposition by Giving the Opposing Counsel Less
No two depositions are the same. In addition to the variety of potential witnesses and their varied personalities, you also must contend with opposing counsels and unpredictable questioning. This makes it extremely difficult to predict how a particular deposition will unfold.
However, as depositions—and specifically video depositions—are becoming more and more popular in trial cases, the need to be able to maintain control of the situation has become even more essential. Every word is recorded, every gesture captured. This is why it is imperative that you know how to properly prepare your deposition witnesses to eliminate surprises.
Witness Preparation
Although it may be impossible to control what happens every minute of your deposition, you can limit hiccups and potential case complications by preparing your witnesses beforehand. Whether they be accountants, field experts, defendants, or otherwise, you can ready your witnesses to confidently take on opposing counsels’ questions without fear of misspeaking or of being nervous. Not only does this confidence help your witness, but it also helps you keep control over the deposition and ultimately your case.
When preparing a witness, make sure to instill the following testimonial mindsets:
- Make the opposing counsel work. Make sure your witness doesn’t volunteer information that has not been requested but provides information only when asked. Rather than giving the opposing counsel ammunition against your case, make him and his experts work to ask the right questions.
- Stay courteous. Make sure your witness knows to stay professional and to avoid being disrespectful, sarcastic, or funny. Not only does poor behavior look bad on a transcript, but it can also give a false impression to the judge or jury.
- Cooperate with co-defendants. Inform your client that blaming others or pointing fingers at co-defendants isn’t helpful to his case. He needs to cooperate with fellow defendants and plaintiffs to the best of his ability in order to show maturity and avoid retaliatory blame.
- Give concise, specific, and truthful answers. Train your witness to be comfortable with answering questions point blank. When he doesn’t understand a question, make sure he knows to say so. If he doesn’t know the answer to a question, make sure he feels comfortable saying, “I don’t know” rather than guessing. Make sure that he is be able to identify compound or leading questions and resist answering them as a whole but instead answer one question at a time.
- Use your words. Whether the deposition is being videotaped or transcribed, body language may be recorded and become distracting or taken out of context. Nervous tics, eye rolling, chewing on fingernails, fidgeting—these are all physical gestures that could potentially be recorded and shown to a jury. Encourage your witness to limit non-verbal communication and gestures as much as possible.
- Avoid using layman’s terms. Encourage your witness not to simplify technical language for the opposing counsel’s benefit. Instead, have him use specific terminology and technical jargon wherever possible. This forces the opposing attorney to use his own knowledge in order to properly question; some attorneys are smarter and better prepared than others. Remember, if the opposing counsel isn’t prepared enough to completely understand the answers to his own questions, than it’s harder for him to formulate follow-up questions.
- Provide detailed facts. When asked to give an opinion about an issue, make sure your witness is prepared to go into excruciating detail on facts. If asked to give an opinion on a certain tax issue, encourage him to break the issue down and fully explain each element of the question. This may require extra work to anticipate what types of questions the opposing counsel may ask, in order to prepare your witness and ensure he is familiar with the facts.
- Stay alert for double negatives. Sometimes opposing counsel may attempt to confuse witnesses by asking questions that contain double negatives, such as, “Isn’t it true that your miscalculations aren’t entirely inconclusive to his portfolio?” Your witness may think he understands the question, but may answer “yes” when he meant “no” or vice versa. Let the witness know he is free to ask for clarification of a question that is worded poorly.
Securing a Successful Deposition Record for Your Client
Coaching isn’t the only aspect of a deposition you need to worry about. Poor documentation, late records, and ill-prepared venues can all affect the outcome of the testimony.
A perfectly executed deposition can be the smoking gun in a jury trial. As such, you can’t afford your gun to shoot blanks. Allow our 20 years of transcription and deposition reporting experience help you plan and create the perfect deposition for your case.
Whether your case requires videoconferencing, court reporting, one-on-one testimonies, or international statements, Casamo and Associates has the skills, equipment, and knowledge you need to produce a successful deposition.
