In this issue of The Discovery Update, the feature article “Preparing a Witness for a Successful Deposition” revisits a litigation fundamental that might either be taken for granted or not emphasized enough. We hope you find this simple and straightforward article, along with the tips and tools in this month’s issue, informative and that you can use them as references.
As always, we welcome your suggestions and comments to The Discovery Update, and we encourage you to send in articles you have written or humorous tidbits for “The Lighter Side of Legal.”
Preparing a Witness for a Successful Deposition
By Matthew D. Keenan,
Shook, Hardy & Bacon
In my 20-some years of working with company witnesses as part of the discovery process, I’ve learned that the prospects of a deposition can stress even the most accomplished corporate executive.
One way of lowering their level of anxiety is to give them mileposts to follow as they prepare. Something that’s easy to remember but useful. This article shares with counsel my system for witness preparation, with tips and tricks for a successful undertaking.
My approach is based on a simple acronym – PLEASE.
It goes like this.
P – prepare
There is no substitute for taking the necessary time to refresh recollection, understand the primary plaintiff themes, and be prepared.
At one level, you are helping prepare the witness for questions in areas within his or her job description. Whether it’s a scientist, or a corporate Vice President with a business background, they can reasonably expect questions about his or her job, knowledge and experience.
At an entirely different level, the witness can also absolutely anticipate questions on the fringe of his or her employment. Opposing counsel may spend considerable time on their “hot” documents regardless of who may have authored them. This can increase the prep challenges.
Read full article>>
Adverse Depositions: Most Do Them Wrong
By Robert Musante Nat’l Speaker, Deposition Cross-Examination Skills
Of all the many aspects of civil litigation that attorneys can shape to their client’s advantage, the skill wielded when taking adverse depositions most often, most dramatically determines case outcome, whether by settlement or trial.
Yet, awkward truth be told, no law school or law firm (of which I’ve become aware in the course of presenting deposition seminars to more than 30,000 litigators in 40 states) teaches the eminently learnable discipline of deposition cross-examination: the one, right, logical way to maximize the questioner’s opportunities in every adverse deposition, in every case, for the rest of time. As a consequence, mediocre deposition-taking abounds — mediocre, that is, in comparison to what should be achieved.
That discipline can be encapsulated in a syllogism: Trial is argument. Deposition is trial. Thus, deposition is argument.
A witness was called to the stand to testify about a head-on automobile collision.”Whose fault was this accident?” the lawyer asked.”As near as I could tell,” replied the witness, “they hit each other at about the same time.”
In a courtroom, a purse snatcher is on trial and the victim is stating what happened.
She says, “Yes, that is him. I saw him clear as day. I’d remember his face anywhere.”
At which point, the defendant bursts out, “You couldn’t see my face, lady. I was wearing a mask!”