Bruce R. Braun, partner with Sidley Austin.

Attorney Bruce Braun can tell stories about powerful corporate executives who testify so poorly at trial that juries despise them, as well as about executives who listen to their general counsel on what it takes to be a good witness.

Chicago-based Braun, co-leader of the firmwide commercial litigation group for Sidley Austin, said he has seen the good and the bad in his years of trying cases. He also believes a company's general counsel can play "an important role in helping to set the stage for the seriousness of the matter and the need [for executives] to prepare."

Braun talked in a recent interview with Corporate Counsel about why top managers can make horrible witnesses, and how the general counsel can help turn that problem around. Here are excerpts, edited for clarity and brevity, from that conversation:

Corporate Counsel: Why do you think senior executives can be such difficult witnesses?

Bruce Braun: They're not always difficult, but it's often the case. There are a couple common characteristics that make managers challenging witnesses, who require a fair amount of work to make them presentable witnesses that a jury and a judge will find credible or identify with. Most executives have gotten to where they are because they are successful. They are used to being right, to trying to come in and win. This often causes senior executives to try to fight, argue and persuade rather than to present the facts in a way that would enhance credibility. Some are more likely to respond aggressively when asked questions they think are unfair, or have their credibility challenged. Most don't have that happen on a regular basis.

Juries are naturally biased against what they see as corporate bigwigs, so if people come across as aggressive when challenged, they can look like jerks.

And sometimes it's difficult for a senior executive to simply say they don't know something, especially when the case is a significant threat to the brand or involves millions of dollars. They'll want to try to explain things that aren't for them to explain.

I've also had experiences where sometimes it's difficult for a senior executive to accept responsibility for something that is unpalatable. They will try to deflect blame to others when they shouldn't; or some try to take responsibility when they shouldn't.

CC: What role can the general counsel play in preparing an executive to testify?

BB: General counsel can play an important role. They can help set the stage for the seriousness of the matter … for gaining the executive's full and undivided attention in getting ready.

The general counsel also knows the business, so can play a key role in preparing the witness [on the facts].

And they can be supportive, making it clear that the company has the executive's back. From both a support perspective and a substantive perspective, they play an important role.

Often after a lot of preparation, the senior executive can be your best witness—articulate, smart, good on their feet. They just often require a tremendous amount of time and attention and work to get them ready.

CC: What about getting the witness ready to face off with an adversarial attorney?

BB: That can be very tricky. It's important for the general counsel to maintain a good relationship with the client, who often is the general counsel's boss or at least a key decision-maker.

Getting the witness ready often involves criticism and challenge. I think it's best to leave the criticism for the outside counsel, who can be really critical and frank. If you are doing your job as outside counsel, you practice as you play. And the best compliment a witness can give you afterward is you were harder on them than the other side was.

CC: Have you ever been in a situation where the general counsel was forced to testify?

BB: I've had situations where it was threatened and motions were filed, but it did not happen. That presents a tremendous number of complications from a privilege perspective.

And I'm glad l haven't. I do a lot of work for accounting firms and law firms, and the worst witnesses almost invariably are lawyers and professional service people. We are problem-solvers, we are used to leading meetings and talking, and generally not accustomed to carefully and deliberately listening to a question and digesting it before we answer.

CC: Do you try to keep senior executives from being called as witnesses, if possible?

BB: It really is case-specific. In many cases the senior executives will be key witnesses, and the jury or judge will want to hear from them. If they are not presented, it can negatively impact the trier of facts perception of your case. You haven't filled in the picture, so to speak.

A lot of plaintiffs lawyers want to bring in an executive because they know it can enhance their settlement leverage.

CC: Can you discuss a specific case where an executive-as-witness nearly blew up, or did blow up, a case?

BB: There was one in particular when I was a young lawyer. I was asked to prepare the managing partner for the Chicago office of a Wall Street investment bank. He was a third-party witness to a troubled deal. And it was both a personal deposition, and a [Federal Rule of Civil Procedure] Rule 30(b)(6) witness, who is supposed to be the most knowledgeable on certain issues for the company. It requires a lot of preparation.

I put four or five prep sessions on the calendar, and the managing partner kept canceling the work sessions. The day before the deposition, we had a full day planned. He did an hour and half and said he was ready and left. I called New York and said this managing partner was not taking instruction well. He assured them he was.

The next day was a nightmare experience. The executive exploded at the plaintiff's lawyer over several questions, using expletives. I suggested taking a break and he told me to be quiet, in not so nice terms. After a couple more questions he got up and left. I had to get a new witness.

The managing partner actually lost his job over this. He thought he could just bully people. That's an extreme example.

CC: Is there a good example?

BB: I was involved in one case representing Microsoft Corp., working with their senior executives, and one of them did poorly in a deposition, which was played in the first stage of trial and got a lot of press. He played word games and tried to spar with plaintiff's lawyer. [Braun did not identify the client, but a Bill Gates videotaped deposition was infamous.]

Before his next deposition, we played video clips of his prior one. After a couple minutes he said, "Turn it off. I need help. Tell me what I need to do to be a good witness."

We worked with him for weeks and he became one of the best witnesses I ever worked with. At first, he had not taken it seriously, but once he bought into the process he was a fantastic witness and literally won the case for us.

CC: Is there anything else you'd like to add?

BB: Particularly for senior executives, the key to being a good witness is practice, immersing yourself in subject matter, the documents and the issues. Then going through a mock deposition session over and over again.

Generally if you work with a witness and prepare them really well by being tough on them, they end up being your best witness.