By Dr. Ken Broda Bahm:
Trial is coming up, the witness is told: “Be at the courthouse by 7:30 Monday morning, meet us in the office on Friday, and oh, remember to carefully review your deposition.” The court date might be a relief after a long wait, the meetings with counsel should help to add focus and calm your nerves, but the reading and the rereading of the deposition? That seems like “homework,” a chore, or the forced reliving of a bad experience. But it is actually one of the most important steps, and a stage in the preparation process that the witness can fully control and master. As I like to say, a knowledge of your deposition — not just a general knowledge, but a deep and specific knowledge — should be your sword and your shield in your trial testimony. It should be a defense against the traps and tricks of impeachment, and it should be an offense in letting you know exactly where you can confidently expand upon what you said in your deposition.
But witnesses frequently miss that opportunity by reviewing the deposition only a little rather than a lot. I’ve written previously about the demonstrated advantage in “overlearning” the deposition, or continuing to review it past the point of general familiarity. In this post, I’ll provide some further thoughts on the reasons and ways that additional knowledge can play both a protective and proactive role in helping your testimony during trial. Specifically, I think there are three ways a detailed knowledge of your deposition can provide that help during your trial testimony.
Why Is Deposition Knowledge Your Best Friend During Trial Testimony?
Because It Lets You Know What Is Coming
Chances are good that your trial testimony is going to focus on what opposing counsel sees as their “Greatest Hits” from deposition. They’re unlikely to try to plow much if any new ground, and are more likely to just cherry pick moments from your deposition that they think will play especially well in front of a jury. That tendency to focus on the tried and true is useful for the witness who knows what is coming. When the start down a familiar road that you recognize from the deposition, you will know that it is your chance to answer in a way that is consistent with what you said in the deposition, while also potentially expanding on it and adding effective explanations that were not necessarily covered in your deposition.
Because It Lets You Know How to Avoid (or Manage) Impeachment
The step of impeaching the witness, or calling out a prior inconsistent statement from your deposition, is a technique that many attorneys love. And it can definitely look bad if opposing counsel is showing that you are changing your answers. We have found that jurors will generally assume that the deposition answers are more accurate, both because they’re closer in time to the events at issue and thought to contain less of the persuasive “spin” jurors expect in a trial. But if you know your deposition well, then you’ll know how to answer in a way that’s consistent with your deposition answer. Where you do need to answer a little differently, you will know you are doing so, and you’ll have a chance to provide an explanation before your adversary has a chance to start down the impeachment road.
Because It Lets You Know the Rest of Your Answer
Less experienced witnesses often see examination as a list-like series of individual questions. But it is really not the case that each question stands on its own. Instead, there are chains of questions. Opposing counsel will pursue a series of predicate questions before getting to a conclusion. And if the first run through fails to get at the optimal answer, counsel will back up and take another run at it. So, even though the focus at the moment might be on one question-and-answer set from deposition, chances are good that you said more on the subject. If you know your deposition well, you can focus not just on the individual answer, but on everything you said on that topic every time it was addressed. And if, when trying to impeach, it turns out the the attorney is snipping out critical context, or ignoring the better answer you gave a few minutes later, then it is your opportunity to turn the situation around by impeaching the attorney’s credibility.
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Other Posts on Witness Preparation:
- Overlearn Your Deposition
- Witnesses: Fight on the Bottom Rungs
- Find a Mindful Way Out of the Stress of Testimony
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Photo credit: Dennis Jarvis, Flickr Creative Commons (edited)