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24 Litig. 27 (1997-1998)
Talking Green, Showing Red - Why Most Deposition Preparation Fails, and What To Do about It

handle is hein.journals/laba24 and id is 261 raw text is: Talking Green, Showing Red-
Why Most Deposition Preparation
Fails, And What to Do About It
by David M. Malone

Like many of the lessons I've learned as a lawyer, this one
was too long in coming. Most of what attorneys tell wit-
nesses preparing for depositions is simply wrong-headed. By
increasing a witness's anxieties, it makes him less confident,
less effective. The testimony is confused and inconsistent, a
story told in fits and starts, without coherence or confidence.
I'm not talking about preparation on what happened or what
was said. Lawyers do not make the facts. I am talking about
the areas where a lawyer can realistically affect the outcome,
when we talk about the deposition experience and its goals.
Take the books or videotapes some attorneys give their wit-
nesses on Preparing For Your Deposition or How to Give
a Deposition I don't do this and won't, and will not allow it
to be done with any of my witnesses. This tells the witness:
This deposition business cannot be very important, if I can
prepare myself with a book. There are lots of these books and
tapes out there, though, so someone must be buying them. I
believe they sell for two reasons: attorneys are not quite sure
what the nonsubstantive portion of the witness's preparation
session is all about; and witness preparation does not seem like
much fun. So they give the witness a book.
Deposition preparation isn't fun like Broadway musicals
are fun. But witness preparation on the deposition process is
essential, and doing it well is a challenge. Witnesses have
potential-they can perform at an A level or a B level. My
job is to help them reach their potential. If a B witness per-
forms at a B level, I have probably done a good job. If I get a
B+ performance from him, I have done a really good job.
And vice versa, of course.
Keep in mind what a good job means here. Among other
things, let's stop measuring deposition success by whether
your witness blocks discovery of harmful facts, or for that
matter, whether you can keep your adversary's witness in the
room for three days and show the other side how good we
are. Generations of young attorneys have viewed witness
preparation as an exercise in finding ways to have them avoid
DavidM. Malone is with the Washington, D.C., office of Venable, Baetjer
Howard & Civiletti, LLP.

LITIGATION Summer 1998

acknowledging bad facts. But attorneys are not responsible
for the facts, good or bad. Instead, we should rate the exam-
ining attorney successful if she discovers new information
efficiently. The defending attorney is successful if the wit-
ness provides information in a coherent, articulate way with-
out divulging privileged or confidential information. Both
sides are successful if the deposition is conducted in a cour-
teous manner in a reasonable amount of time.
We should also teach our new attorneys the difference
between preparation and coaching. Preparation is helping the
witness say what she actually wants to say, by providing
word choices or assisting with organization or refreshing
recollection. Coaching is improperly adding content to the
witness's testimony, attempting to make it more useful to
one's side. A simple rule of thumb: If the substantive content
of the testimony comes from the attorney, it's coaching; if it
comes from the witness, it's preparation.
So, how do we help witnesses perform to their potential in
the deposition room? Not with a book. Many of these are
chock full of sound analysis, good advice, and pithy exam-
ples involving deposition problems. An attorney could find
here much of the information she needs to know to take and
defend depositions well. Unfortunately, these books weren't
written for lawyers, but for witnesses, and not professional
witnesses, like experts or hospital document custodians, but
amateur witnesses like the car shop mechanic or the secre-
tary. Here are people who have never testified before, do not
want to testify now, and hope to God they never have to tes-
tify again. And their attorney is handing them a book. A thick
book with a table of contents, an index and, worst of all, no
pictures. A book that makes it seem likely that the attorney
will not even be at the deposition. Not comforting. Not help-
ful. Not anxiety reducing.
There's the rub. The key to deposition preparation is
reducing the witness's anxieties, letting her focus on the spe-
cific task at hand, and telling her that the specific task is sim-
ple, narrow, and well within her ability to accomplish. What
is the witness's job? Telling the truth in response to ques-
tions, and keeping her statements brief. That's all. No more,
1!7     Volume 24 Number 4

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