Didn't learn how to defend depositions in law school? Not to worry

You're a newbie lawyer, enjoying the good life of litigation. You've done a bunch of research projects, prepared and answered written discovery, prepared some motions, and maybe got the chance to take a deposition or two. You're feeling pretty good about being a lawyer. In comes your partner explaining that an emergency has come up and you need to defend the client's upcoming deposition. Oh, and you also have to prepare the witness to testify. You panic mode because you've never prepared a witness for deposition nor defended a deposition. No one taught you "how" to be a lawyer in law school. Not to worry. I've been there and am here to help you through the basics.

Preparing Your Witness

Cases rarely get to trial these days and are often resolved based on the documents produced and information learned through depositions. Clients and attorneys want to know not just what the witness has to say, but what they look like, what their demeanor is, whether they are credible, whether they will garnish sympathy or command attention. Most witnesses are not sophisticated. Most have never been involved in a lawsuit. Most are nervous. For all of these reasons, preparing your witness for deposition is a critical task.

Insist on a prep session. Do this no matter how experienced the witness is in giving depositions. The prep session is for the benefit of both you and the witness. You would be surprised at how much you learn in these prep sessions. It also gets your witness to focus. Plan the prep session far enough in advance to allow the witness to prepare, whether that means trying to find information out or looking for and reviewing documents.

Privileged prep. Assuming your witness is your client, your prep session is privileged. The opposing side can inquire whether you met with the witness prior to the deposition, but not about what was discussed. Tell your clients this in the prep session to put their minds at ease.

Logistics/set up/process. Review the date, time and location of the deposition with the witness. Explain where everyone will be sitting: The court reporter will sit at the head of the table; the witness will sit in the chair closest to the reporter; you will sit next to the witness. Opposing counsel will sit across from the witness. Make sure you explain what will happen: Everyone will show up and take their seats. The reporter will swear the witness in. Opposing counsel will ask questions. As lawyers, we take the set up and process for granted. But knowing these basics can be comforting and calming for a witness.

Admonitions. Go over the admonitions with the witness so they are familiar with the "rules" of a deposition from a process perspective.

Fact gathering. Discuss the case with the witness. Learn as much as you can about the witness, what role the witness plays in the case, the facts the witness has knowledge of (or does not know), the documents, etc. During this portion of the prep session, you can discuss whether the witness should try to find out the answers to some questions or not prior to the deposition.

Documents. Think about whether you want your witness to review documents or not. Seeing new documents may confuse the witness about certain information/facts. Also, be careful what documents you review with the witness in preparation. The opposing side is entitled to know what documents were reviewed. However, that does not mean you should avoid discussing documents with your witness. Make sure to review the documents you are confident will be raised during the deposition. For instance, if the witness gave a prior statement to a police officer, you should review the statement with the witness to ensure consistency or whether the document should be expound upon, or whether there is anything missing or inaccurate.

Rules the witness must remember: (1) tell the truth; (2) listen to the question being asked; (3) answer only the question being asked and stop

Witnesses want to say what will help their case or what they think they are "supposed" to say. Remind the witness that if they lie, they are committing perjury. Put the witness at ease that the facts are the facts and it's the lawyer's job to work with the facts.

Witnesses oftentimes think they know what the question is before it is asked or think they know what the other lawyer is trying to ask. They often interrupt the question or provide an answer to a question that was not asked. Remind witnesses to focus and listen to the question and only answer the question that is actually asked.

Conduct a mini deposition. The witness needs to be prepared for the tough questions. They need to practice how they are going to respond to questions. Word choice is important.

Defending the Deposition

You've made it the deposition, now what?

Listen to the questions. If you've done a thorough prep session with your witness, you already know the answers to the questions. You also will know if the question is not as straightforward as it might sound and can assert an objection.

Object where necessary. Bring a cheat sheet of objections with you. As you are listening to the questions, run through the list of objections and determine whether any apply.

Listen to the answers. Pay attention to what your witness is saying. Oftentimes, the opposing side will twist what the witness says when they ask a later question. If you are listening, you can assert the proper objection to preserve the record.

Stop your witness from rambling. Witnesses may love to hear themselves talk. If the witness is sophisticated, this can work to your advantage. However, most witnesses are not sophisticated and rambling often hurts your case because they provide far too much information. Do not be afraid to stop the witness.

Make a record of conduct. Remember, unless you are on video, the only thing being recorded is what everyone is saying. The reporter is not capturing behavior, volume or tone. If the opposing side is yelling at your witness, make a record: "Let the record reflect that opposing counsel is yelling at the witness." You may need that record later.

Don't agree to "fill in the blank" or produce documents raised in the deposition. Sometimes, the witness may not remember information (e.g., a name) and the opposing lawyer may say, "I am going to have the reporter leave a blank in the transcript. I ask that you look for the name and fill it in when you review the transcript." Don't agree to do this. You can say, "I object to the witness researching information and filling in the blanks at a later date. We can meet and confer off the record after the deposition." The same goes with agreeing to produce documents. The opposing side gets one chance to discover information and request documents from a witness. Don't give them more than they are permitted.

Take a break when necessary. A deposition is not an endurance test. A break may be necessary to diffuse a heated deposition. You may need to speak with the witness to have them explain something they said.

Know the stipulation. In California, there is a typical stipulation that attorneys enter at the end of depositions. You should understand what the stipulation is before ever agreeing to it. Essentially, under the Code of Civil Procedure Sections 2025.210 et al., court reporters are supposed to maintain the original deposition transcript and make it available at their office for the witness to visit and review the transcript and make changes. The stipulation most California attorneys enter at the end of the deposition relates to this provision.

I hope the above proves to be helpful to you and that you feel more comfortable preparing your first few witnesses and defending your first few depositions with confidence. Good luck in the trenches.