Effective witnesses know their case, are prepared, and are equipped with the right tools to help them be persuasive. These five steps will help you prepare even the most seasoned of witnesses for deposition or trial.
1. Know Your Goals
You have to know what you want out of the deposition, as does your witness. The first thing to consider is: what kind of testimony is this? The goals for depositions versus trial testimony are very different. In a deposition, your goal is generally not to take on (too much) water. “Winning” isn’t the goal in a deposition. In trial, however, your goal is to teach the jury the subject matter of your area of expertise (it could be facts, science, or why your company matters), and ultimately persuade them that you’re correct by maintaining your credibility on cross-examination. More on that later.
2. Know Your Audience
In a deposition, your “audience” is generally limited to opposing counsel. Because the audience is “only” opposing counsel, explain to the witness that there is no judge to rule on objections. Help your witness understand the types of objectionable and tricky questions he or she will still have to answer. Help her identify questions that call for speculation and teach her strategies for dealing with compound questions.
Further, because opposing counsel is your audience, your goal cannot be to win. I’ve yet to see a lawyer, exhausted after taking a long deposition, throw up his hands to a witness for the other side and declare, “You’ve convinced me! I concede this case.” The goal is the answer the questions truthfully – but not to persuade. It’s practically impossible to “win” a deposition, and by trying, you could severely damage your case. This shift in mindset alone will help your deponent understand how to most effectively answer deposition questions.
In trial, your audience is everywhere, all the time. Witnesses should assume their audience is watching them every moment they’re in the vicinity of the courthouse. Once a witness is within a mile of the courthouse, he has to be on his best behavior and act as though this serious case is on his mind at all times (no joking or laughing in the hallway – about anything!). While testifying, the goal is to win – therefore, witnesses should learn to be persuasive. Credible witnesses, who answer with authentic emotion are persuasive; this builds credibility with the jury. But it can be lost if a witness does not answer the questions on cross-examination with the same demeanor with which he answered them on direct. If a witness successfully teaches the jury about his area and the jury believes him, but then acts haughty and annoyed during cross-examination, you’ve lost credibility. And credibility is everything. Remind the witness that it is the jury’s job to be annoyed with the opposing party – not his.
3. Know How to Listen
We routinely remind witnesses to (1) Listen to the Question, (2) Think about the Question, then (3) Answer the Question. Of course, this sounds simple, but if you listen to how often people speak over one another, you know it’s not how people normally interact. Testimony is not a conversation. Testimony is created first with careful listening – to the question and any objections. It’s next through thinking about if you know the answer, and what the answer is, that a response should be formulated. This applies equally to depositions and trial testimony. It’s no exaggeration to say that listening is more important than answering.
4. Know How to Answer
In a deposition, the cardinal rule is to only answer the question that was asked. “Do you know the way to San Jose?” “Yes.” You weren’t asked how to get there – yet.
In trial, this means front-loading an actual answer to each question on cross-examination. “You took the last cookie out of the cookie jar, didn’t you?” A typical defensive witness will want to answer, “I gave that cookie to Aunt Mildred. I didn’t eat it, but yes, I did take it out of the jar.” But a much more forthcoming answer gets the point across while making the witness appear more cooperative and responsive, “Yes, but I gave it away;” or “Yes, but I didn’t eat it;” or “Yes, but not for myself.” The key is, the answer starts with “Yes,” rather than taking a dozen words before you get to “yes.” You’re going to have to give the answer eventually, so give it upfront. That way, you get points for being forthcoming.
5. Know the Answers
Of course, we can’t know all the answers, just as we cannot anticipate all of the questions; but we know what a lot of the questions will look like.
In deposition, knowing the answers means the most common answers are Yes, No, I don’t know, and I don’t remember. Those are simple, and they should make up the bulk of the first answers given in each new line of questioning.
In trial, witnesses must be intimately familiar with their prior testimony and important documents or emails they’ve authored. But even more than that, themes are key. We cannot know the precise questions a witness will face, but we can almost certainly craft a line of “faux” cross-examination about each topic, and help the witness understand the trial theme for each topic. For example, when asked the “cookie jar” line of questions, the trial theme may be “Aunt Mildred couldn’t get the cookie herself.” Knowing that theme gives the witness an idea of what’s important while being beaten up on cross. When hit with, “YOU took the cookie out of the cookie jar, didn’t you?” the witness knows she can say, “Yes, for Aunt Mildred.” Her “safe” space is the fact that it’s okay to take the last cookie if it was done for Aunt Mildred. When preparing witnesses, we craft and apply themes to difficult areas of questioning. This helps the jury understand the importance of the witness on direct, and helps the witness feel less defensive and more in control on cross.
Effective witnesses are prepared. They know their case. They are equipped with tools to help them persuade. Sending an unprepared witness into trial or deposition is a mistake a lawyer only makes once. Even the most seasoned witness needs to prepare for the facts specific to the case at hand – don’t shortchange your case by failing to have witnesses who are prepared to be effective.
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