Our first article this month, “A Potted Plant? Eh, Not So Much,” discusses preparing and defending witnesses at deposition, which we hope you will find helpful, along with the other articles and tools in this issue.
Please send us any feedback you may have or articles you think we should include that would benefit other legal professionals.
A Potted Plant? Eh, Not So Much.
By Alex Craigie
Two blawg posts last week caught my eye. Both discussed preparing and defending witnesses at deposition. At the Lawyerist, Chris Bradley talked about his experiences defending a client in his first judgment-debtor examination. His title for the piece, which I mistakenly took to be ironic, was: How To Defend A Deposition: Just Show up. The other post, by blogger Jordan Rushie, took the assignment more seriously, and provided better guidance, likely because he has more experience. In his post, Rushie credited Max Kennerly with the notion that “[i]f you prepare your witness properly [for deposition], you should be able to just be a potted plant.”
Let me say first that I’m not sure whether Max Kennerly ever made that statement. It sounds pretty good, provided you don’t, as Jordan Rushie fortunately did not, take it completely at face value. What concerns me is that young lawyers reading Bradley’s post at the Lawyerist and contemplating Kennerly’s remark might mistakenly conclude that adequately preparing your client or witness for deposition is enough. Or nearly enough.
Not all witnesses are saints. While this is especially well known in the realm of criminal prosecution, it applies in civil trials as well. A witness may carry some unsavory background, or the context may simply be such that their testimony – truthful or not – feels like betrayal. The same factors that apply to the stereotypical “jailhouse snitch” can also apply in a variety of situations: a whistleblower, qui tam relator, or expert witness testifying against a member of the same profession. A doctor criticizing another doctor’s work, for example, may be viewed as breaching the basic human tenet of loyalty, and for that reason, the witness may be distrusted.