The Art of Prepping a Witness

• Author: Daniel Nathan, E. Scott Morvillo, Warrington Parker, Robert Stern, Elizabeth Marshall Anderson
• Pages: 30-34

Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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The Art of

Prepping a Witness

DANIEL NATHAN, E. SCOTT MORVILLO, WARRINGTON PARKER, ROBERT STERN,

AND ELIZABETH MARSHALL ANDERSON

Daniel Nathan, E. Scott Morvillo, Robert Stern, and Elizabeth Marshall Anderson are with Orrick Herrington & Sutcliffe LLP.

Warrington Parker is with Crowell & Moring LLP.

In a client’s deposition, investigative testimony, or government

interview, there are few things that make an attorney wince more

than when the questioner asks about facts or circumstances of

which the attorney is unaware. Or the client provides a version

of the story the attorney has never heard.

Worse is the client who fills in recollection gaps with anything

from guesses to modest embellishments to outright lies. And not

to be forgotten is the client who reveals having tampered with

or deleted documents, emails, or other evidence.

These things happen. And when they do, we as attorneys will

not panic and instead will deal with it with the professionalism,

ethics, and care required.

But it’s even better to avoid such occurrences. Effective witness

preparation—“prep”—helps to ensure that those happenings are rare.

Thorough preparation is time-consuming, emotionally draining,

and (sometimes) costly. But it is time well spent. Strong deposition

testimony can strengthen summary judgment motions, cause oppo-

nents to be more inclined to settle, or both. Solid interviews or client

testimony that is credible and does not support the government’s

theory may prompt a prosecutor or regulatory agency to close an in-

vestigation. Effective prep helps bring about the best possible result.

Witness preparation varies depending on the type of testi-

mony—litigation deposition versus government or regulatory

agency interviews or testimony. This is for three reasons.

First, the questioner’s goals, and thus the questions, will differ

depending on the context. Litigation depositions are often, but

not always, designed to score points by obtaining facts and state-

ments that can be used to influence a finder of fact. Investigative

testimony is usually designed to further an investigation and

obtain as complete an account as possible.

Second, the materials available to use in prepping the client

will differ. Litigation depositions typically occur following ex-

tensive document discovery. By that time, the client’s emails and

other documents will have been reviewed and hopefully catego-

rized for relevance and privilege. If the client is associated with

significant documents in the case, they can be identified well

before the prep sessions start. Thus, the issues about which the

client will be asked in a deposition may be clear.

It is more difficult to prepare for government testimony. You

likely will not have a clear understanding of the scope of the in-

vestigation or the testimony. The investigating agency may have

obtained information from a broad range of sources unavailable

to you. Indeed, you should always assume that the government

knows significantly more about the matter than you do and will

use that information advantage to test the accuracy of the client’s

testimony and the client’s candor and credibility.

Finally, the client’s exposure can vary. If the Department of

Justice is interviewing the client, the case may concern poten-

tial criminal conduct; but even agencies that enforce civil laws

can and do refer matters to the DOJ, and there is a risk in civil