Deposition Focus to Keep You Honest When Questioning a Witness
For a lawyer, knowing what your witness will say is an essential part of legal strategy. Before a deposition or trial, an attorney should prepare the witness, if only to avoid embarrassment and surprises. Carefully and meticulously prepping a witness for testimony can make the difference between a smooth deposition and a disastrous one—just ask Justin Bieber’s attorney. During prep, an attorney needs to teach the witness how to behave, how to formulate answers to potential questions, and how to remain calm and honest while under oath. Once properly prepared, the witness’ testimony (and therefore the deposition) should run smoothly.
This seems pretty straightforward, doesn’t it? Well, in theory it is. The problem arises when the need to win a case overshadows the ethics involved with preparing and questioning a witness.
Honest Deposition Tips to Avoid Misconduct
If you’ve ever seen A Few Good Men (“You can’t handle the truth!”), Law and Order, or any other show that set in a courtroom, than you’re probably aware of how the public understands the phrases “tampering with evidence” and “coaching a witness.” Both of these terms allude to malicious ethical misconduct in order to sway the verdict in a particular way. Although attorneys have a strict code of ethics to uphold the law, they also have a responsibility to their clients to win. As a result, this moral code can and often does get pushed to its limits—and in some instances broken altogether.
Although little white lies or slight misrepresentations of facts in a case may seem harmless—especially if they help your client—they can land both you and your client in serious trouble. In addition to perjury charges and the likelihood of a mistrial, if you encourage or otherwise assist a witness in committing fraudulent claims or misrepresenting important information, than you could wind up suffering disciplinary action, career-ending sanctions, and even criminal charges.
Below are a few deposition prep tips to help you adhere to the ethical code, as well as help your questioning run smoother and more focused:
- Review documentation. To avoid wasting time or causing confusion during the deposition, it’s important that you and your witness review any relevant evidence or documentation that may pertain to potential questioning.
- Practice. Before beginning a deposition, make sure your witness is comfortable answering questions and controlling her answers. Organize a mock trial and ask her hypothetical questions to see how well she answers them. Test her memory about certain aspects of the case to ensure recollection. Address and suggest adjustments to any insecurities or nervous mannerisms and behaviors.
- Ensure understanding. Make sure that everyone on your side, including the client and ach witness—know the facts and any applicable laws associated with the case before the beginning of the deposition.
- Avoid tangents. Make sure the focus of the questions are based on the central issues of the case. Try to avoid rambling or discussing unimportant issues; this could seem like you’re trying to lead the witness.
When prepping a witness for questioning it’s easy to cross the line from preparing into coaching. Anxieties are heightened, adrenaline is pumping, and you want to ensure the witness doesn’t say anything that may harm your case. Unfortunately, the truth may not always be in your case’s favor. However, as a lawyer, instead of encouraging your witness to twist the facts or lie, you must stick to the law while working with her truthful testimony.
And, if you’re a witness, remember this: no matter how intensely you’re encouraged to lie—even a little—you must always tell the truth while under oath.
