After working with hundreds of witnesses over the years, we have found that lawyers are some of the most difficult witnesses, because they often think they know it all. Despite that, counsel who have attorneys for clients can effectively prepare them to testify at depositions by following two simple rules.
1. Properly prepare the attorney-witness. More cases have been lost at deposition than have been lost at trial. This often occurs because counsel has not spent time adequately preparing the witness. There are two components to effective witness preparation: substantively preparing the witness and refining the witness’ delivery of the information.
Counsel who neglect either of these two essential elements have the potential for disaster on their hands. This is especially true with witnesses who are lawyers, because the jurors who eventually may hear the cases will hold attorney-witnesses to a standard even higher than that of expert witnesses. To meet this heightened expectation of knowledge and credibility, lawyer-witnesses must possess a solid grasp of the information and the documents.
After getting up to speed on the facts and documents, lawyer-witnesses need help from counsel to prepare them on delivery. The old-school mandate was, “Answer the question ‘yes’ or ‘no’ if you can.” This is not particularly effective or sage advice.
Rather, lawyer-witnesses should listen to the entire question and answer only the questions asked, not offering further explanation beyond that requested. Sometimes an answer only requires a word or a sentence; occasionally a question requires a paragraph answer, but rarely does the question compel anything more. The goal for witnesses is to answer questions without providing “bait” for other questions.
Lawyer-witnesses are not trying to persuade anyone at a deposition but simply should provide concise answers to the questions asked. This is a particularly daunting task when a witness is a lawyer, since most lawyers are not good listeners. (If you don’t believe us, just ask your spouse or significant other if you are a good listener.) Training lawyer-witnesses to listen to questions first — instead of immediately thinking of answers — takes practice.
The most effective technique for training lawyer-witnesses to listen to the questions is to videotape their practice sessions. Then, show them how their answers were not responsive to the questions asked. Such tapes, made pursuant to and protected from disclosure by the attorney-client and work product privileges, are remarkable teaching tools.
2. Get the attorney-witness to speak in layman’s terms and be likeable. The next problem with attorney-witness depositions is the language barrier that frequently occurs — often referred to as “talking shop.” When accountants, mechanics or physicians get together, they talk in a language with which they are comfortable and familiar.
Lawyers are no different. Therefore, counsel must teach lawyer-witnesses not to use words or terms of art with which other lawyers will be familiar but that will be foreign to the jurors who eventually may hear the cases.
Language is the greatest impediment to effective communication. Counsel should remind lawyer-witnesses that, although they are answering questions in front of other lawyers in depositions, they ultimately may talk to jurors. That’s why, even in depositions, lawyer-witnesses should explain terms of art they use and use examples or analogies to illustrate their points.
Counsel should advise lawyer-witnesses that future juries might see their videotaped depositions. Therefore, counsel should coach lawyer-witnesses to appear likeable (believable), not condescending, arrogant or argumentative (deceptive).
Although being deposed can be frustrating, counsel also should advise lawyer-witnesses to avoid being drawn into a verbal fight with questioners. Opposing counsel will be more than happy to play deposition videotapes in front of future jurors to show them that the charming lawyer-witness on the stand was rude and condescending in the deposition.
Counsel must prepare lawyer-witnesses before depositions, noting the difference between standing firm and lashing out.
Lisa Blue is a partner in Baron and Blue in Dallas. She holds a Ph.D. in psychology and speaks nationally on jury selection and communication skills.
Robert B. Hirschhorn is president of Cathy E. Bennett & Associates in Lewisville. He is an attorney and a nationally recognized expert in jury and trial consultation. The two co-authored “Blue’s Guide to Jury Selection.”
