Deposition: Witnesses’ First Chance at a First Impression

We watch a lot of deposition videos, and too often witnesses seem rattled, nervous and, frankly, unprepared.  Unfortunately, with the growing use of technology in the courtroom, there’s a good chance a trial jury will see parts of your witnesses’ depositions during impeachment or even opening, and putting the wrong foot forward could introduce the jury to your witnesses at their worst.

Yes, you can repair some of the damage of a bad deposition by working with the witness before trial to smooth out the rough edges.  But jurors already suspect – correctly – that attorneys “coach” their witnesses, and a huge transformation between deposition and trial only confirms these suspicions and erodes the jury’s trust.  The jury might wonder whether the “real” witness is the Dr. Jekyll they saw at trial or the Mr. Hyde who showed up for deposition. 

It’s best to work these things out beforehand.  To that end, we’ve put together a few tips to make the most of your witnesses’ depositions:

• Dress the part – There’s nothing wrong with doctors and nurses wearing scrubs for their depositions, and in fact we’ve found this bolsters a positive impression of them as “caregivers.”  (That said, please make sure they’re clean.)  In most cases, though, it’s best for witnesses to dress as if for a job interview or church, including their hair and makeup.  We’ve found jurors are thrown off by witnesses who look slovenly or overly casual.  And encourage your witnesses to dress conservatively – no gaudy jewelry or low-cut tops to distract or create a negative impression.
• Know the case – Even though it’s part of “discovery,” jurors expect deposition witnesses to at least know the basics of their involvement with the case.  We encourage witnesses to refer to records when they are uncertain about events, but this should be to refresh their memories and locate details rather than figure out more generally what happened.  Witnesses should review all relevant records beforehand.
• Know your message safeground – It’s a fine line between bumbling through a deposition and appearing overly rehearsed, but witnesses should have an idea of your approach to the case and the themes you want to develop.  A “message safeground” – a big-picture theme that can shape and inform all of their testimony, as well as serve as a haven when things get tough – can help witnesses avoid costly admissions.  After all, the number one goal of every fact witness during deposition is to not single-handedly sink the case.
• Wear a wedding ring – Numerous studies over the years have found married people – especially men – are more successful in their careers in part because they are seen as more responsible.  If your witnesses are married, we’d encourage them to wear modest wedding bands for deposition.  This is particularly important for middle-aged and older men, as we’ve found through our research that when these witnesses don’t wear wedding rings, focus group jurors sometimes ask why – which is at best an unnecessary distraction. 
• Talk to the jury – Depositions can get heated, and it’s natural for witnesses to get defensive, sarcastic and angry when being badgered by a hostile attorney.  This is best avoided, as no one is at their best and most likable when they’re on the defensive.  Here’s a trick we’ve developed: If the witness is feeling anger at the attorney get the best of him, he can address his answers to the “jury” (the camera, if one is present) rather than the attorney.  Fighting with opposing counsel is your job, not that of the witness.                                                             
• Practice makes perfect – Deposition should not be the first time your witness has faced intense questioning by a hostile attorney.  Your preparation should consist of not only reviewing records, but also a mock cross-examination to give the witness a sense of what they’ll face.  The witness most likely trusts you, so ask someone else in your firm who they don’t know to conduct the questioning.  Practice until the initial shock of being questioned aggressively wears off and the witness can keep his or her composure.  It’s also helpful to videotape the practice sessions so witnesses can see how they might come across to a jury. 

We’ve worked with a lot of witnesses over the years, and we’ve developed many successful tips and tricks.  Unfortunately, many clients wait until after a disastrous deposition to call us in to help fix the problem.  From our perspective, that’s a wasted opportunity to have your witnesses put their best foot forward from the outset. 

If you’d like to find out how we can help your witnesses before deposition – or at any time – please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.