Preparing Witnesses for Deposition – It’s Not Just about the Facts and the Law

Generally speaking, when preparing a witness to be examined at deposition, the trial lawyer’s focus is on (i) the witness’ factual knowledge and how that fits within the legal framework and the case narrative, and (ii) helping the witness communicate his or her knowledge effectively so that the testimony will be perceived as credible and persuasive.  In short, the drivers of the process are substance and the audience’s perception of that substance.

But what comes out and how it lands depend on another critical factor that is sometimes overlooked: the witness’ own psychology and, more importantly, how that psychology will play out in the unnatural and often confrontational setting of a deposition.  That is, understanding what makes the witness “tick”–the good, the bad and the ugly–and how and to what extent those issues are implicated by the matters raised in the deposition, is an important part of witness preparation.  The application of that knowledge–communicating from a psychological perspective to the witness what he or she needs to understand–can be quite important to the testimony elicited at the deposition.

The following example is illustrative: The witness feels the need to always to be “right” and “to win” conversations.  This kind of witness must always have an answer and always wants to give that answer.  Frequently she also is defensive and, when she lacks what she perceives is a winning answer, might try to explain why the question approaches the issue incorrectly or otherwise expand her response in ways that are not productive.  To prepare such a witness, trial counsel must try to address these tendencies so that the witness testifies effectively.  The attorney could define for the witness–appropriately and ethically, of course–how they “win” in this deposition.  E.g., by answering only the question asked truthfully, and not volunteering information or trying to persuade the other lawyer of her position.

This is but one example of a psychology that may impact a witness’ ability to testify effectively.  Others include: (i) one who tends to avoid confrontation, (ii) one who is motivated to engage and facilitate conversation given their profession (e.g., a long-time salesman), (iii) one who is intimidated by the legal process and/or an older opposing counsel, and (iv) one whose familial or cultural background impacts the manner or substance of their testimony.

In sum, witness preparation involves not only consideration of the facts, the law and the audience’s perception of the witness and their testimony.  Understanding what makes the witness tick, and embracing and using that information, may also help facilitate the witness’ effective delivery of his or her testimony.

— Michele Stephen

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