When it comes to depositions, effective testimony requires preparation—as long as it is the right preparation.
When a civil lawsuit is filed, hotel executives and other employees may find themselves being asked (or told) to testify at a deposition. Although trials are rare in civil litigation, depositions are common. They can make or break a case and have a huge impact on liability exposure for your company.
When it comes to depositions, there is no such thing as too much preparation—as long as it is the right preparation.
Truthful, complete and effective testimony requires preparation. Preparation gives the witness confidence and makes the experience more palatable. Preparation is the tool that puts the hotel employer, its executives and employees in the best possible light.
Opposing attorneys take a witness’s deposition for several reasons:
- to educate themselves on the witness’s knowledge about issues in the case, good or bad;
- to gain admissions or testimony unfavorable or unflattering to the company;
- to commit the witness to testimony so the attorney can prepare to rebut that testimony, or impeach a witness with inconsistent trial testimony; and
- to size up the witness (and by extension, the hotel company).
This article is not to be construed as legal advice. It simply offers some fundamentals about preparing for and giving testimony at a deposition.
Know the audience. Consider the true audience, which is the jury. Jurors have an innate sense for sizing up a witness as honest, decent, knowledgeable, believable, fair and reasonable; or shifty, evasive, cocky, incompetent or argumentative.
Listen carefully to each question. Each word of the question should be thoughtfully considered. If a question is not understood or simply not heard, the witness should say so and ask that it be repeated, reworded or for the court reporter to repeat it. Listening is as important as answering. The quality of the answer is determined by how well one listens to the question.
Take ample time to think of the answer before responding (unless your deposition is being videotaped). If the deposition is not videotaped, it is better to be deliberate than quick. The transcript will not show a long pause. If the deposition is being videotaped, a witness must be quicker. A pause can be awkward, and a jury can see the mind turning. The answer should always be formulated before a witness starts talking.
Answer the question and only the question. Unless the attorney instructs the witness not to, the witness must answer the question. This means answering the question asked—not a question that was not asked. A witness need not and should not volunteer information.
Be patient. Along the same lines of not volunteering information, the witness needs to be cognizant that there are other pieces to the puzzle, and the company will have an opportunity to give its full side of the story at trial. A witness should not try to do too much. Witnesses do well if they answer questions truthfully, do not get their words twisted and make a good appearance.
Understand and embrace “I don’t knows” or “I can’t remembers.” The other attorney may press for specific details. A witness may not know such details and should not feel the need to guess or speculate. A witness should not be afraid to say “I don’t know” or “I cannot remember at this time.” At the same time, a witness should not intentionally fail to recall. The witness would have a difficult time explaining an improvement of his or her memory at trial.
Do not speculate about or assume what a document is. Witnesses need to carefully and thoroughly examine all documents shown to them. Witnesses should finish reading documents shown to them before addressing any question about those documents.
Be accurate. The witness is asked to swear certain facts exist or do not exist. The witness must avoid temptation to say something is true just because it sounds plausible. The witness must avoid the temptation to agree to something because it is “more or less” true. In a casual conversation, precision is often unnecessary and sometimes undesirable. In a deposition, precision is always paramount.
Correct mistakes promptly. No witness is perfect. If, in spite of caution, the witness realizes an erroneous answer has been given or he or she has misspoken, the witness should promptly correct the answer.
Only the witness can answer. Private conferences between the attorney and witness are improper unless you confer to determine whether to assert a privilege. You can consult freely with your attorney during breaks.
Take control of the deposition. If the witness needs a break, the witness should take a break (except if there is a question pending). If the witness does not understand a question, the witness should not answer it, even if the opposing counsel insists it is understandable. A witness should demand to see a document if being asked about that document. The witness should feel as if he or she is in control of the deposition, not feel controlled by the opposing counsel.
Do not consult outside sources. A witness should not do “homework” by talking to non-attorneys or consulting with outside sources (unless the attorney has directed the witness to do so). Undisclosed documents reviewed or conversations had with non-attorneys may become discoverable. One might ask, “How then does a witness prepare for a deposition?” First, the witness does do homework. The homework is through and with the assistance of counsel. The witness will be told what documents to review, if any, after consulting with the attorney. The witness will then study them. Second, the witness needs to prepare in his or her mind what to expect and how to respond.
Know thy enemy. Opposing attorneys use different tricks to elicit testimony that will help the plaintiff’s case. Witnesses should be wary of these types of attorneys:
• The friend. The attorney who jokes or gets really informal. This attorney is trying to get the witness to open up and let the guard down.
• The bully. The attorney who antagonizes the witness. Things said in anger are often things we regret saying. The witness must stay composed.
• The hypothesizer. The attorney who tries to get a witness to assume or hypothesize about facts that may not even be true facts.
• The lost puppy. The attorney who seems inarticulate, lost or unprepared. This attorney may actually know exactly what he or she is doing. This attorney preys on witnesses’ innate desire to “help” or to set things straight.
• Silent but deadly. The attorney who pauses after an answer is given, hoping the awkward silence will compel the witness to keep talking.
Finally, a witness should get a good night’s sleep before the deposition and keep in mind that the deposition will be over soon enough.
Peter C. Middleton, a member of Hall & Evans LLC, represents Colorado, national, and international companies in complex catastrophic tort litigation, including multidistrict litigation. He has adeptly defended a wide variety of clients including product manufacturers (pharmaceuticals, automotive, off-road vehicle, textile and heaters), design professionals (structural and geotechnical engineers), healthcare providers and facilities (doctors, hospitals, mental health professionals), and property owners and developers. He has successfully defended insurance companies in bad faith and breach of contract actions. He can be reached at email@example.com.
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