The foundation for a successful trial result is necessarily laid well before trial. One of the factors in a successful defense of a corporate client is the outcome of the corporate depositions. The following thoughts on corporate deposition preparation address several issues that are critical to successfully preparing a corporate witness for deposition. (1)
Partner with In-house Contact
It is important to utilize your in-house contact with the corporate defendant as soon as the depositions are requested to assist you in making sure the requested witness provides you with sufficient time and attention for deposition preparation. Make sure that your in-house contact obtains a time commitment from the witness to allow for sufficient preparation. Also, work through in-house counsel to ensure that the witness has thoroughly reviewed all appropriate materials relating to the case before the deposition preparation. It is particularly helpful to schedule a conference call in advance of the deposition preparation session with the witness and in-house contact to go over issues relating to the preparation. This conference call also allows the lawyer to confirm that any relevant documents have been gathered from the witness and to learn of the existence of any documents of which the witness is aware that were not gathered during the preparation of the client's discovery responses. Obviously, it is much better to learn of these documents in advance of the deposition preparation session rather than learning of their existence in the deposition preparation session, or worse yet, in the deposition itself. This conference call also allows the witness to raise any preliminary concerns regarding the deposition and the preparation.
Cover Trial Themes and Issues
Counsel should discuss both the plaintiff's and defendant's case themes and arguments with the witness so that the witness has an understanding of the overall issues in the case and a more thorough understanding of the issues relating to that witness' involvement in the case. In addition to giving the witness context as to where the witness' testimony will ultimately fit in the case, providing this information prepares the witness to address questions from plaintiff's counsel that attempt to lead the witness into providing testimony that is really outside of the witness' knowledge.
Witness' Role in Case
Each witness needs to be comfortable testifying as to their factual involvement in the case, such as approving the denial of an insurance claim, designing a product, etc. The witness must be able to articulate what happened, what they did or did not do, and why they did or did not do it. This does not mean that the witness should be given a script or that the substance of the witness' truthful testimony should be altered. Instead, it is an exercise in making sure that the witness can organize and articulate the witness' factual knowledge in a manner understandable to a jury and can sustain...