What Should a Witness Know About a Deposition [Top 10 Articles]

What Should a Witness Know About a Deposition

Are you a witness with an upcoming deposition? Whether this is your first or one of many depositions you’ve had, it’s important to be as prepared as possible.

What happens in your deposition will likely affect the outcome of the case.

Over the years, we’ve published many articles on many topics related to depositions. Even though we, as court reporters, work directly for attorneys and report what is said during a deposition, we decided to publish articles about what we believe would be helpful to witnesses.

We’ve compiled a list of some of the 10 most viewed articles on our website that discuss helpful tips for witnesses. Because of how many views these articles get, we know these are topics that witnesses are searching for answers about.

(Disclaimer: We are not attorneys and this is not legal advice. Please consult an attorney about any of these topics when preparing for your deposition.)

Top 10 Articles to Help a Witness Prepare for a Deposition

What to Wear to Your Deposition

Your counsel has given you plenty of good advice on preparing for your legal deposition. You know that you must be polite and respectful, avoid interruptions, and speak clearly on the details of your story. But now that you have prepared your testimony, you’re wondering how else you will be judged in the courtroom—and one of the biggest factors influencing the jury will be your appearance.

While how you look and what you wear doesn’t necessarily tell the jury everything about you, your appearance will nevertheless play a significant role in how you are perceived. (Read more…)

When Should a Witness NOT Answer a Deposition Question?

Your attorney has prepped you for your deposition. You’re pretty clear on what will happen, who will be present, and what you should do if you are unable to answer a question. But what if you can answer a question, but you don’t think you should?

This is a typical occurrence at many depositions. While the deposing attorney will ask questions that are relevant to the case, they may also repeat questions to make sure your answers are consistent, or ask questions that are meant to embarrass or enrage you. Often, these questions will be damaging to your case if you answer them truthfully—and of course, you have sworn to do so. So, what are your options? (Read more…)

Can (and Should) You Go to a Deposition Without an Attorney?

You’ve decided to represent yourself in court. You didn’t do anything wrong, and you just need to give a few straightforward answers and get on with your life. Why would you need to pay an attorney just to stand in the corner while you answer a few questions?

Many deponents assume they do not need an attorney to be present for questioning because attorneys rarely take action in a deposition. What they do not realize is that most of the necessary work of a deposition takes place beforehand, so if your attorney has done a good job preparing you, he will likely say very little on the day of your actual deposition.

An attorney’s most vital role is to prepare his client. (Read more…)

Preparing for Your Deposition: Who Will Be There and What Will Happen

What happens in your deposition will likely affect the outcome of your case.

You have good reason to be nervous about appearing for your deposition. No matter how much the opposing attorney may try to put you at ease, your deposition may be the most important event in your case—and can be even more effective than your testimony in court. (Read more…)

When Attorneys Can and Can’t Object During a Deposition

The real legal world is rarely as tense and active as courtroom dramas would have you believe. For example, your attorney is bound by the law when objecting to questions: he may only interrupt if the question is irrelevant or improper. If the answer hurts your case, but is relevant, there is legally nothing he can do. (Read more…)

The Documents You Bring to a Deposition Can Hurt Your Case

You may have learned the old Boy Scouts maxim: Be Prepared. It’s helped you a lot throughout your life, and while your attorney does a fine job of protecting your interests, you figured it couldn’t hurt to give him a hand by backing up all of your arguments with paperwork. After all, this is a great way to show opposing counsel that your case is airtight.

Sometimes, too many documents may actually hurt your deposition. (Read more…)

Avoid These Four Common Mistakes in Your Deposition Answers

One of the worst mistakes people can make in a deposition is forgetting that how and when they answer a question can be just as important as the words they use. If you want to make sure that your testimony is the best possible representation of your side of a case, remember these four tips addressed in this article as you enter the deposition area. (Read more…)

These Last 3 Articles Include Questions Related to Specific Case Types:

What questions will I be asked in my divorce deposition?

An opposing attorney could ask any number of questions in your divorce deposition. Some are relevant to the facts of your case, and some are not—but if you choose to answer them, all of them can be used in court. This article discusses a few topics that may be brought up during your deposition. (Read more…)

Common Questions Attorneys Ask in a Worker’s Comp Deposition

You were injured on the job, so you deserve fair payment for your bills and medical treatments from your employer. You’re not really afraid to give testimony to another attorney; the facts, as you see them, are pretty straightforward. However, if you’re not prepared to answer questions about your home life and previous jobs, you will likely be rattled on the stand—maybe even to the point where your answers hurt your case. (Read more…)

What are some worker’s comp deposition mistakes I should avoid?

There are plenty of mistakes a deponent can make in an injury case, so every injured worker should be fully prepared by his or her attorney well before the deposition date. The first things to remember are that you should always tell the truth, be polite, and only give as much information as necessary to answer the question you are asked.

In this article, we discuss three ways deponents have hurt their deposition testimony in the past. (Read more…)

We hope this resource article will assist you in preparing for your upcoming deposition. Remember, make sure to consult your attorneys about these topics to make sure you do what they recommend.

If you are an attorney and would like to share some of your thoughts about preparing witnesses for depositions, we’d love to hear from you! Contact us here.

If you liked this article, you might also enjoy reading one of our more recent articles, What Attorneys Wish Their Witnesses Didn’t Do on Social Media.

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What Attorneys Wish Their Witnesses Didn’t Do On Social Media

What Attorneys With Their Witnesses Didn't Do On Social Media

Has your case been affected by what your witness posted on social media?

In today’s world, social media websites allow people to openly share whatever they want and communicate with others around the world. Over 1.79 billion individuals worldwide use Facebook every month, and over half visit the website at least once in a day. In one minute, more than 1.3 million separate pieces of content (photos, wall posts, etc.) are uploaded to Facebook, while Twitter processes a staggering 340 million tweets per day from its over 140 million active users. Unlike an in-person comment or a phone call, content posted on social media websites are more permanent and potentially public, presenting the possibility of either a minefield or gold mine of evidence in litigation.

Depending on the litigation, social media websites can provide informative and useful information about witnesses and opposing parties. Given the open nature of the social media websites, and the abundance of information posted by the users, attorneys have discovered that seeking information for their cases from these websites can be a great tool in their arsenal.

As a result, witnesses should be careful about what they post on social media websites since the information can be used against them and may affect the outcome of the case.

Are you talking with your witnesses and those you represent about social media and its potential impact on the case? Let’s discuss some social media tips that you can discuss with your witnesses.

Social Media Tips for Your Witness

1. Don’t Post Any Potential Incriminating Evidence

Most people use social networking pages that can be used as a valuable source of information or a potential pitfall. Pertinent evidence obtained from witnesses’ social media accounts on sites such as Facebook, Twitter and others, can discredit evidence given by witnesses; prove and disprove alibis; reveal personal communications; establish personal relationships and motives; provide location information; and establish criminal enterprise or crime.

In 2009, Vaughan Ettienne, a New York police officer who was testifying against Gary Waters who was trial for possession of a weapon, was discredited as a result of the posts he made on social media websites. Using evidence drawn from Ettienne`s online social media activities, Gary`s lawyer was able to cast enough doubt on the police officer`s character to have the jury dismiss the serious charge against Gary. Gary`s lawyer dug up evidence that showed that the day before the arrest, Vaughan had set his mood indicator on his MySpace page to devious. He also told the court that leading up to the trial, Ettienne had set his Facebook status to read “Vaughan is watching ‘Training Day’ so that he brush up on proper police procedure.”

2. Be Wary of Friend/Connect Requests

Witnesses should be wary of the strangers they communicate with on social media websites since, in some cases, people can deceive them online so that they could get information about the case or influence the outcome of the case.

In a real-world example of an attorney trying to befriend a potential witness, a prosecutor in Ohio posed on Facebook as an ex-girlfriend of a murder defendant. The prosecutor`s stated goal was to convince the 2 female alibi witnesses to change their stories. However, in the end, his plan failed and he was fired.

3. Be Aware of Witness Intimidation and Harassment

Given the nature of some of the offenses committed via social media, it would be good for attorneys to be alert to the possibility that witnesses or victims might be intimidated or vulnerable. In such cases, potential vulnerabilities will be properly considered, including early conversations with law enforcement on whether special measures should be taken.

In an increasing number of cases, there have been examples of intimidation taking the form of social media postings. Witnesses have been referred to as a “snitch,” “rat,” and worse. In December 2013, 17-year-old Nasheen Anderson pled guilty to charges of making terroristic threats and witness intimidation. He used his Twitter account to post photos outing witnesses to two 2012 shootings and a 2007 homicide and secret grand jury documents.

Although he made a guilty plea, it remains unclear how Nasheen received the documents from the grand jury proceedings. Nasheen activities are a drop in the bucket compared to the impact of an Instagram account called “Rats215.” Before it was finally shut down, the Instagram account grew to 7900 followers and was being updated almost every day. Between February and November 2013, the account outed more than 30 witnesses to violent crimes, in most instances posting photos of witnesses, their testimony and statements.

We live in a world now in which communication is instant. It is extremely easily for any of us to quickly post something without thinking about the potential ramifications. As an attorney, preparing your witnesses with these social media tips may save them a lot of time and trouble in the future, even as relates to the outcome of the litigation.

In another article, we discuss video deposition preparation tips for attorneys and their witnesses.

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Guidelines for Protecting Young Witnessess

innocent-childChild testimonies can be extremely compelling and influential for jurors and judges alike. Child witnesses are seen as unlikely to deceive, so they have high credibility. In addition, adults empathize with children on a deeper level than with other adults. However, placing a child on the stand can be risky, and it will require an enormous amount of preparation and attention to detail, in order to avoid infringing the child’s rights under Virginia’s Crime Victim and Witness Rights Act and provisions in the U.S. Code covering child victims’ and child witnesses’ rights.

Child Witness Protection Laws

Virginia law is extremely precise when it comes to the protection of children during court cases—especially when that child is compelled to testify against an abuser or about a crime he witnessed. The Crime Victim and Witness Rights Act, usually referred to as the Victims’ Bill of Rights, guarantees that testifying victims of crimes—adults and minors—will have the following rights:

  • The right to have the opportunity to make the courts aware of the impact the crime had on the victim.
  • The right to be treated with dignity, respect, and sensitivity.
  • The right to have their privacy protected.

Underage witnesses—victims or crime-observers under the age of eighteen—have additional rights and regulations to protect their privacy, mental health, composure, and temperament. These include protective regulations for:

  • Determining competency. Although a child is presumed to be competent enough to give a reliable testimony, a competency examination may be conducted by the court (only upon written motion and offer of proof of incompetency by a party) to protect the child from giving a false or incriminating testimony.
  • Handling courtroom testimony. It is important for both the witness and your case that the minor is comfortable giving testimony in open court. If he isn’t, the court may decide on alternative forms of testimony. If he is, you must still tread carefully to avoid causing him too much stress or emotional trauma, as well as avoid opening him up for ridicule or danger from the person against whom he is testifying.
  • Conducting alternative testimonies. When a child is unable to testify in open court in the presence of the defendant, the court will order that the minor’s testimony be taken by closed-circuit television or by pre-recorded means. Acceptable reasons for these alternative means of testifying include if the witness suffers from a mental or other physical condition, fears testifying in front of the defendant, exhibits potential for emotional trauma, or he becomes too stressed to proceed as a result of conduct caused by the defendant or defense counsel. By allowing the child to testify outside the courtroom, it removes the potential for emotional stress and allows the child to speak freely. Furthermore, these means of communication can also provide additional protection for the child by removing him from the reach of the defendant and stresses of the court.

Further Protections for Privacy and Well-Being

In addition to taking safety precautions for the protection of a child witness during his testimony, child witness laws require that minors’ testimonies are kept private to protect their identity. In other words, all papers that are filed with the court that disclose the name of a child witness or any information concerning his life (address, telephone number, family members, etc.) shall be immediately filed under a seal. This seal will ensure that the documentation and information therein will not be able to be accessed without a court order.

For more information on how to prepare and protect your witnesses’ rights during depositions and testimonies, browse our extensive blog for more articles. If you’re looking for a reliable service to record your witness’ statement, contact us directly at (703) 837-0076. We’ll be happy to schedule you a professional legal-recording session. In light of our 25 years’ worth of experience and expertise, you can be sure of our skills and that our high-quality productions will help you get the most out of your witness’ testimony. Call now.

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Vocal Exercises to Ensure Clearly Understandable Depositions

Practice Exercises to Help Prepare Your Witness’s Voice for the Stand

It doesn’t matter whether you’re a public speaker, being able to express your thoughts clearly is essential to be understood. Unfortunately, not everyone has the same skill with articulation and diction as those who speak for a living. Varying speech patterns aren’t necessarily a handicap in the real world, but when giving a deposition or speaking in court, the possibility of being misunderstood can have dreadful consequences.

When speaking in front of a court or when giving a deposition, your witness’s words determine the outcome of a person’s future. Don’t you want those words to be clearly understood? In some cases, depending on his speech patterns, accents, or tonality, you may have to work with the witness to ensure the clarity needed during depositions.

Vocal Conditioning Exercises

Although used most often by singers and actors, vocal exercises are a greatDragon-drum-speech way to condition your speaking voice while also giving you confidence. As a lawyer, you can do these exercises before a trial to ensure your voice is strong and persuasive. As a witness, these exercises can be used to promote clarity and help you feel more comfortable when speaking.

Furthermore, when all the voices in a deposition or trial are well-conditioned, the risk that a transcriptionist will mishear words or that a microphone will fail to pick up words is dramatically decreased. Therefore, before your next deposition, whether lawyer or witness, try performing the following exercises to condition your speech.

  • Volume training: The Doppler effect. Mimic the sound of a car speeding past you. Keep your mouth closed and softly hum, gradually getting louder and louder. Once you feel as though you’re screaming, gradually lower the volume. Repeat several times, attempting to reach the peak faster until you sound like a passing car. Take note of the volume of the peak and mimic your speaking voice to that volume.
  • Pitch training: The Wicked Witch chant. Sing the “O-Ee-Yah! Eoh-Ah!” chant that the Winkie guards sing in The Wizard of Oz. Start with the first “O” as a bass note, raise the “Ee” an octave, then repeat the third and fourth syllables as bass notes. Finally, lower the last “Ah” one more octave. Repeat entire chant several times.
  • Articulation training: The Dragon Drum speech. Repeat the following dialogue, making sure to articulate each word; pay special attention to the letters T, R, and S: What a to-do to die today, at a minute or two to two. A thing distinctly hard to say, but harder still to do. We’ll beat a tattoo, at twenty to two, a rat-tat-tat-tat-tat-tat-tat-tat-tattoo. And the dragon will come when he hears the drum, at a minute or two to two today, at a minute or two to two.

Speak to Be Heard

As accredited transcription and video deposition professionals, we know how important diction and articulation is to procure a strong record. Don’t allow your deposition to be misunderstood as a result of poor speech. Encourage your witnesses to perform vocal exercises before going on record and practice them yourself to ensure courtroom clarity.

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Witness Diction and Articulation for Deposition Clarity

The purpose of a deposition is to procure a clear record of a particular witness’s account of events dealing with your case. However, for a record to be as useful as possible, it must be as clearly understandable as possible.

Now, of course you will want to make sure the technical facilities for recording a deposition are in fine working order. You’re well aware that, if there’s a technical glitch, a transcript can always clarify what was said. But great video is so much more compelling to a judge or jury that you would really prefer a perfect video record to printed words on a page.

public-speaking-cardboard-cutoutsTo get these great results, you must properly prepare your witness—and one of the most important things you must emphasize to your witness is speaking clearly.

Vocal Clarity

A deposition is pretty much useless if the witness can’t be understood. It doesn’t matter whether the statements were recorded by hand or were captured by video, if his articulation was poor, the record might be difficult to understand. For example: a mumbled “yeah” may be interpreted as a “nah”; rambling may be seen as uncertainty; and poor enunciation may make the witness seem distracted, unreliable, or a little dotty.

However, you can avoid miscommunication and deposition delays by encouraging your witness to practice and pay attention to the following:

  • Articulation. Proper pronunciation and attention to vowels and consonants are extremely important for vocal clarity. Instead of “yeah,” your witness should say “yes.” Remind him that during a deposition, the ends of words can be lost or fail to be picked up by the microphone. As such, it is vital that he not only speaks loudly but that he also enunciates his consonants while speaking.
  • Diction. Another serious impediment for depositions is poor diction. When a witness speaks with heavy inflection or accents it can be difficult to understand. Although an interpreter can be secured for foreign speakers, even regional dialects can be misleading. While prepping your witness, ask him a few common questions that may come up in the deposition and make sure that you can understand his speech patterns. If not, you may want to encourage different pronunciations or look into having an interpreter on hand.
  • Speech patterns. How your witness carries the conversation can also disrupt clarity. In addition to being clearly articulate, he needs to be concise. Rambling, drawling, or underscoring words with repetitive “uhs” or “umms”—known as vocalized pauses to speech professionals—can project uncertainty and alter how people comprehend the witness’s responses. Try to encourage your witness to be precise with his answers, even if it means taking a few seconds to compose the exact words he wants to say in his head.

For more information on how to secure a clear deposition record, contact us today. Whether you’re looking for an accredited transcriptionist to ensure accuracy or an experienced videographer to secure a clear visual record, we have what you need. Fill out the contact form provided and we’ll get back to you as soon as possible. In the meantime, feel free to browse our extensive collection of educational articles to learn more about deposition prep and execution.

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Deposition Benefits of Witnesses Dressing Professionally

A lot of details need to be addressed when preparing for a deposition. One of the more important of these is advising the deposition witness on how to prepare himself. A deposition—especially a video deposition—could wind up being the feather in your case’s cap, but if your witness doesn’t know how to behave, how to look, or how to be professional, the benefits of a visual deposition can quickly turn into a handicap.

How Appearance Affects Witness Credibility

How the witness chooses to dress will affect his credibilityThe ancient Greeks wrote the book—some of the earliest books we have, in fact—on excellence in public speaking, whether in government assemblies or the courtroom. One of the three essential qualities of an effective speaker, they believed, was something called ethos: persuasive sincerity, poise, and honesty in the person’s manner.

This factor is still essential today. If a witness is improperly dressed, the judge and jury will not weigh his testimony on its own terms; instead, they will see and hear a person who doesn’t care about the seriousness of the case. This will be seen as disrespect for the legal process and for the court. It can’t help but undermine the value of what the witness says.

Therefore, to ensure that your witness gets the proper attention he deserves while avoiding any misconceptions due to his appearance, it’s essential to let your client know the importance of proper dress for depositions.

Clothes Make the Witness

Credibility is a hard nut to crack—especially when you’re seeing someone for the first time yet are expected to trust what he’s saying. A good example of this can be seen in politics. Throughout so many presidential campaigns, how often have you seen a candidate in a t-shirt and shorts? Now, besides that fact that you probably don’t want to see some of the candidates in casual wear, the point is they dress professionally to enhance their credibility. They look responsible; therefore (they hope you believe), they must be responsible.

A similar reasoning applies to witnesses in court trials and video depositions.

When watching a video deposition you want the court to focus on what is being said and how it is being said (body language, nuances, etc.), but not especially on who is saying it. You don’t want the strength of a witness’ testimony to be negatively influenced by an opinion of his credibility based on his appearance. Positively influenced, sure—but negatively, no.

By convincing your witness to leave the cargo shorts and tank top at home and to put effort into his appearance for his deposition, you can help him better relate to the judge and jury and allow his testimony to get the credibility it deserves.

Rather than a dirty shirt and ripped jeans, business or even business casual attire can go a long way in:

  • Showing responsibility. When a witness takes the time and effort to make himself look respectable, people see it as a sign that they’re taking the situation seriously. When a witness puts absolutely no effort into his appearance and instead gives his testimony as if he doesn’t care, it shows a lack of responsibility.
  • Showing trustworthiness. Whether he is an expert witness or a character witness, a person’s dress will say a lot about his integrity. For example, if the case focuses on drunk driving, and a character witness gives testimony in a Budweiser shirt and board shorts, everything he says will be viewed (perhaps unfairly) with suspicion. However, if an expert witness testifies in a sharp suit, it shows that he is taking the deposition seriously and responsibly, which inherently produces an air of honesty and trustworthiness.
  • Showing sincerity. If a witness walks into a murder trial wearing a baseball cap, cut-off jeans, and a stained tank top, the jury will take one look at him and think that he doesn’t care whether his testimony is heard—and if he doesn’t care, why should they? The same thing is true when watching a deposition. As a lawyer, you need the court to respect the witness, and for the court to respect the witness, the witness must respect himself and his appearance.
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Advice to Brace Your Witness for a Strong Video Deposition

As with any testimony, video deposition witness prep is essential to controlling—as much as possible—how a testimony will play out. The preparation period lets the witness get comfortable with how you will question him; at the same time, you’re also giving him reassurance and allowing him to steel himself for what he has in store from the opposing counsel.

In essence, it is a time for both you and your witness to reach a mutual understanding on how to compose yourselves and deliver honest testimony in the most compelling way for the court and jury.

Witness Advice

courtroom-witness-standWhen preparing a witness for a deposition, it is important to make sure that he knows how to come off as responsible, confident, and trustworthy. Providing him with the following advice is a good start to help him achieve this goal before he’s placed in front of the camera. These hints will also help show your professionalism and credibility as they’ll create a sharper and stronger video.

The witness needs to remember to…

  • Speak clearly. Your witness may feel anxious, frustrated, or even scared to give his testimony. As a result, his voice may be affected. Encourage him to practice speaking loudly and as clearly as possible. Let him know that although the microphones are sensitive, he needs to be loud enough for his words to be picked up by the audio system. Tell him that, if necessary, you will allow him to take a few moments to compose himself before questioning to ensure his speech is clear.
  • Ask questions to clarify. It is important that your witness understands the questions he is being asked in order to answer them correctly. However, anxiety and fear of being criticized can cause some witnesses to answer without fully understanding what is being asked, in order to finish quickly. Many attorneys rely on this reflex to get contradictory statements. In order to keep your witness focused and keep him from giving an inaccurate statement, encourage him to ask for clarity. If he doesn’t understand something, tell him to have the attorney rephrase the question. Before the deposition, role play with him by asking potential questions and seeing how he responds. The more comfortable he is asking for clarification, the less you have to worry about him becoming confused on video.
  • Dress appropriately. One of the perks of a video deposition is that a witness doesn’t have to be in the same room as you during questioning. Rather than having to travel, a witness can theoretically give his testimony from anywhere. Unfortunately, this “freedom” has a way of making people think they can be as comfortable as they want since they may not be in professional surroundings. However, this isn’t the case. Although the testimony may be given in laid-back surroundings, it has the potential to be viewed in a court of law. As such, you need to encourage your witness to not only act responsibly but also dress responsibly. Even though the video may only show him from the waist up, suggest he wear slacks and dress shoes—not ripped jeans and sandals. Encourage a suit and tie, not a stained t-shirt and trucker hat. Remind him that the more responsible he looks, the more credible his testimony will appear.

You need your video deposition to be as clear and crisp as possible in order to engage the court. Don’t allow the hard work you put in to preparing your witness go to waste. You wouldn’t allow just anyone to prep your witness, so why trust an amateur to record his testimony? Call us today to set up your next video deposition and see how good your work can look.

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Dropping Technical Speech for Clear and Simple Testimony

Not many people enjoy jury duty.

In addition to taking up your precious time, the responsibilities of being a juror can be overwhelming, yet the process of jury duty can be extremely boring. After listening to hour after hour of dry, barely intelligible testimony, you’re then required to make a decision which could effectively alter another person’s entire future (no pressure there). The truly overwhelming aspect, however, is knowing that you must pay attention and understand what is being said, but not being able to do so because of the tone and complexities of the dialogues.

Useless Courtroom Dialogue

ShakespeareIf you learned one thing in school it was that if you didn’t understand something, you couldn’t pay attention to it.

“I prithee, sweet wag, shall there be gallows standing in England when”…[oh look, a bird]…“thou art king and resolution”…[wonder what they’re serving for lunch]…“thus fubbed as it is with the rusty”…[fourteen minutes and fifty-four more seconds]…“curb of old father Antic”…[forty-eight…forty seven]…“the law?”

Sound familiar? Unfortunately, the same reaction holds true for jurors and outdated legal or confusing technical jargon:

“The revocation by these Regulations of a saving on the previous revocation”…[I wonder if ‘The Revenant’ is on Netflix yet]…“of a provision does not affect the operation of the saving”…[I should have worn different shoes]…“insofar as it is not specifically reproduced”…[Is it lunchtime yet?]…“in these Regulations but”…[twelve minutes until noon] “remains capable of”…[eleven fifty-two]…“having effect.”

However, instead of getting a poor grade on a test, if a juror zones out or becomes confused, he may wind up risking your client’s entire future.

The CliffsNotes Approach

Just as you may have relied on the condensed and simplified CliffsNotes study guides for your Shakespeare quiz, you can help your jurors understand the testimony by encouraging simpler speech. Whether as an attorney or witness, by taking the time to clarify what you’re saying—or better yet, to streamline your words in the first place—you can ensure that the jury will understand the meaning of what is being said and stay alert during the proceedings.

Before your next trial, prepare yourself and your witnesses by reiterating the importance of the following when asking questions and as well as answering them.

Attorneys

  • Keep it interesting. You don’t want to bore the jury with mundane or repetitive questions and statements. If you want to reiterate a point, make sure you add some pizzazz to the dialogue to keep the jury interested.
  • Keep it simple. Shakespeare was a classic wordsmith—you don’t have to be, not should you be. Ask straightforward questions to get straightforward answers. Trying to show how smart you are could not only confuse the witness and the jury but it could also make you sound pompous and overconfident.
  • Keep it civil toward the witness and the jury. You don’t want to antagonize the witness or jury as it will only cause resentment and anger—which could then lead to an unfavorable case outcome. You don’t have to walk on eggshells. You can be assertive, just don’t be a bully.

Witnesses

  • Keep it short. Long-winded answers can not only get boring but it can seem like you’re rambling without really knowing what you’re talking about. This doesn’t bode well for jury confidence. When asked a question, make sure you answer it completely but concisely as well. Don’t use 15 words when three will do.
  • Keep it simple. You want the jury to sympathize with you and take you at your word. They can’t do that if your word has 17 syllables. You may have an advanced degree from a prestigious university; you can be sure the typical juror (not to mention the judge) does not.
  • Keeping it thoughtful. Just like an attorney, you don’t want to antagonize or belittle the jury. The best answer is a thoughtful yet truthful one.
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Avoid Witness Coaching Misconduct: Deposition Tips

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 Misconductcode-of-ethics

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.

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Preparing vs. Coaching: Witness Deposition Ethics

The Dividing Line Between Preparing and Coaching a Witness for a Deposition

Whether you’re planning for a deposition or a trial, making sure your witness or client is properly prepared to answer questions is essential. You want your witness to project confidence and an air of trustworthiness for the jury. You also want his answers to help your case—or at least not help the opposing counsel’s case. In order to find a balance between all of these, you must put the time and care into preparing your witness.

Attorneys are expected to instruct their witnesses on how to behave during questioning, as well as how to properly and confidently give answers. Unfortunately, as with most things, the way an attorney instructs his witness can have consequences.

bad-lawyer-good-lawyerPrepare vs. Coach: The Two Sides of Witness Instruction

Although many layman would disagree, attorneys are ethical creatures. As professionals who uphold the law, they have strict codes of conduct when it comes to witness tampering and fraudulent behavior.

Unfortunately, the boundary line when it comes to preparing a witness can be easily missed if you’re not careful. As a result, an otherwise ethical lawyer may wind up crossing into the unethical land of coaching misconduct. This is why it is important to not only know the difference between preparing and coaching a witness, but also know how to avoid crossing the line.

Proper Preparation

When instructing a witness for questioning, the following tactics should be used to ensure an ethical preparation:

  • Educate. Review and explain the legality of the issues at hand as well as the questioning procedure.
  • Lay out a plan. Discuss how you’re going to question the witness. If the witness is your client, then you can also discuss how you’re planning on attacking the case and how his testimony will play into it.
  • Encourage honesty by reassuring competence. This is your opportunity to make sure that the witness knows that he must stick to honest facts, and it isn’t his responsibility to alter facts to improve your case. It’s your job to make whatever he says work for the case—whether good or bad, as long as it’s honest.
  • Build confidence. Reassure the witness that he has nothing to fear as long as he is honest.
  • Lessen confusion. Discuss how questioning works and how the opposing counsel may try to trip him up with legal jargon or confusion. Provide tools to lessen that confusion such as telling him to repeat or rephrase the question.
  • Rehearse potential questions. Help the witness get comfortable with the process of answering questions in order to avoid nervous stuttering or anxiety.
  • Provide support. Give your witness all of the encouragement and support he needs to feel comfortable during questioning.

Coaching Misconduct

Some lawyers try to skirt the line of propriety by giving their witnesses an improper “edge.” Not only is this type of behavior completely unethical, it can also seriously damage a case and even cast doubt on the lawyer’s professional morality and competence. Common coaching tactics include…

  • Encouraging dishonesty. It’s unethical to instruct the witness to lie about facts or conceal pertinent evidence that may hurt his case.
  • Plotting misconduct. It’s unethical to assist or counsel a client to engage in felonious conduct or behavior that you know knows is fraudulent.
  • Drafting testimony. It’s unethical to provide a script or specific terms or phrases for the witness to say (or not say) in order to misrepresent facts.
  • Baiting. It’s unethical to improperly influence or lead a witness into giving a false testimony. This includes knowingly presenting false evidence and misrepresenting facts to assist a witness’ false testimony.
  • Falsely influencing other witnesses. It’s unethical to encourage your witness to provide false information in order to influence other witnesses to change their testimonies.

Remember, the way your witness acts under oath could reflect poorly on you. Make sure he is properly and morally prepared before he testifies to avoid problems and accusations of tampering misconduct.

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