Appendix B. Witness Preparation Summary Handout

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 219-234

Appendix B

Witness Preparation

Summary Handout

219

Discussion

For a number of years, I have used a memorandum containing a brief

overview of the proceeding and a summary of the Ten Rules to help wit-

nesses in their preparation. The next section of this appendix contains a

series of alternate introductions, containing similar language but different

overviews for a variety of proceedings. The third section of the appendix

contains a summary of the Ten Rules. By putting together the appropri-

ate introduction and the rules text, you can create the summary memo for

witnesses. It will give you the option of using either the book as a whole,

or the summary memo, or both, for preparation, depending on the nature

of the client and the matter.

The best way to use the memo is not to send it to the client and then

just ignore it. It is far more useful as an integrated part of the preparation

process. I usually wait until I have met with the client, gone over the facts

briey, and discussed the importance of preparation in that context. I then

give the client the memo and ask him or her to read it carefully, jotting

down right on the document any thoughts or questions it raises, so that we

can use it as the basis for our next meeting.

At the next preparation session, I will tactfully try to nd out whether

the client has read the memo. However, whether or not the client has read

the memo carefully, I will still walk through it with them, trying to tie the

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rules to that case. I then refer back to the memo, and the rules, at every

subsequent stage of preparation.

Introduc tions

Deposition

You have been called as a witness in a deposition in a civil case. A deposi-

tion consists primarily of questions by lawyers and your answers, under

oath, transcribed by a court reporter, with your lawyer present. A deposi-

tion is not a trial. There is no judge or jury present, and nobody is there to

keep score or award a verdict. Charm, persuasiveness, sincerity, and other

appealing human attributes are largely wasted in a deposition. The result

is a written record known as a transcript, which will be used (or misused)

by the lawyers when the actual trial occurs. Therefore, the most important

task for a witness in a deposition is to keep the transcript clear and accurate.

Although it often has some of the appearances of informality—a confer-

ence room setting, a casual atmosphere among counsel—a deposition is a

difcult, often articial and unnatural procedure that demands your care-

ful attention and preparation. The notion that you can just go in and tell

your story without intensive preparation is an invitation to disaster. This

memorandum is intended to help you begin the process of preparation.

Please study it, think about it, and use it as a basis for asking questions

when you meet with counsel.

The oath you will take at the beginning of the deposition is to tell the

truth, the whole truth, and nothing but the truth. Like many things in our

normal lives, we tend to blur it all together into one image. Like many things

in the precise and articial world of a deposition, you need to examine the

entire statement, and make sure that you understand and seriously consider

all three parts. There are, after all, three parts to the oath for good reasons.

In a deposition, the hardest part of following your oath is to tell nothing

but the truth. This takes a surprising amount of preparation, concentra-

tion, and internal discipline. Much of what we do or say to keep a normal,

casual conversation going must be avoided at a deposition. In friendly

conversation, to avoid looking rude, or foolish, or uninformed, we often

APPENDIX B

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