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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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