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Leave No Stone Unturned: Preparing Your Corporate Witness for Deposition

January 29, 2019

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Under Federal Rule of Civil Procedure 30(b)(6) or a Notice of Deposition, a company representative testifies on behalf of a corporation about information known or reasonably available to the organization. A corporation does not have to limit itself to only one company representative.  A corporation may appoint multiple representatives to address specific areas of inquiry in the notice of deposition.   After you’ve chosen the right corporate representative(s), preparing and presenting them properly is crucial for a successful deposition.

PREPARING YOUR WITNESS

Meeting face to face with each corporate representative individually at least several weeks in advance of their deposition and again several days before is critical.  From the beginning, you should explain the parameters of your representation of the company, and stress the importance of confidentiality as it relates to your discussions.  Generally, it is beneficial for you and your witness to discuss what will likely happen at the deposition, and the types of questions (s)he will encounter, the types of documents they will be shown and the corporate policies and procedures they should understand. The following four steps should help you both feel more comfortable in preparing for the deposition.

1. SCHEDULE A MEETING. Meet face to face with your witness several weeks before a deposition and again  at least a day or two before the deposition to ensure everything will stay fresh in his or her mind.  Try to meet alone and refrain recording the meeting using a Dictaphone or other such device.  If it all possible, take handwritten notes only.  Make sure the witness understands the overall dispute, the key witnesses, the claims, the defenses, and the corporation’s position. Explain that personal observations or beliefs are irrelevant; the witness is simply answering questions for the company.  Stress the importance of answering only those questions that fall within the areas of inquiry for which the witness has been produced to testify.

2. CHOOSE KEY INFORMATION. Obviously, the nature of the case dictates what information becomes “key information”.  Generally, however, the corporate representative should be prepared to testify only as to the specific topics or areas of inquiry for which he/she is being produced. Before meeting with the corporate representative, it is paramount to the defense of his/her deposition to go over the notice and the specific areas of inquiry.  Identify documents such as company policies and procedures, and other important information from the discovery process to discuss with him/her. Go over the organization’s positions, opinions, beliefs, or interpretation of facts. Only offer information relevant to the case.  Information to cover can include:

  • What opposing counsel likely wants to discuss during the deposition (a “talking points” memo or summary);
  • Summaries of interviews or testimony from other employees and former employees;
  • If applicable, key testimony from prior corporate depositions;
  • Photos, video, models, graphs and other such records produced in discovery that opposing counsel might show the witness;
  • Written corporate policies and procedures and manuals, especially information on the corporation’s website;

3. CHOOSE YOUR TOPICS. Create a mock deposition with topics opposing counsel will likely explore. Include the company’s document retention policies and any electronically-stored information.

4. GO THROUGH SAMPLE TESTIMONY. Run through the mock deposition. If you can, bring in another lawyer who knows the case, but who the witness is unfamiliar, to offer a mock cross examination.  If you know which opposing counsel will take the deposition, get that attorney’s prior corporate deposition transcripts.

Explain to your witness what objections mean. Teach him or her to listen and to recognize the type of questions being asked. One of the easiest training tools is the question, “Do you know what time it is?” It requires a '”yes” or “no” answer, yet many people will also give the time. That would be improper response.  If a question can be answered with a “yes” or a “no,” instruct your witness not to say more unless the “yes” or “no” doesn’t reflect well in the testimony.  Be mindful of the witness’ response to questions like, “Is that everything?” or “Is there anything else?”  It should always be limited to the area of inquiry for which they are being offered to testify.

INSTRUCTING YOUR WITNESS

Consider giving your witness a written copy of instructions such as the following so (s)he can review them after your face to face meeting:

  • ALWAYS TELL THE TRUTH.
  • Listen to the question, understand the question, just answer the question.
  • Never volunteer information.
  • Don’t hide information; state facts completely and concisely.
  • Don’t answer questions unless you fully understand them. If necessary, ask for questions to be repeated.It’s okay to ask a question in response to a question.
  • It’s okay to say, “I don’t know,” or “I don’t recall,” but if you know the answer, you must answer.
  • If you can’t answer vital facts, don’t assume anything. If you must guess or estimate, please be sure to tell counsel you are doing just that.
  • If the opposing lawyer asks about a document, read it carefully and completely before testifying.If you need to take a break to read or you need to read in a different room to feel comfortable, just ask to do so.That is completely fine.
  • Keep the document in your hands while you’re being asked about it. If the lawyer needs the document back, request him or her to return it to you before you answer.
  • Remain consistent in answering repeated questions; give them careful consideration.
  • Always keep in mind what you know and how you know it before you speak. If you can’t point to the source, you’re probably speculating.Do not speculate.
  • Never joke or be flippant; laughter isn’t recorded in depositions and the context could be misinterpreted and affect the case.
  • This is not a conversation with the other side.Take your time with your responses.Think critically.
  • Eat a good breakfast and get a good night’s sleep.

PRESENTING YOUR WITNESS

Most witnesses feel uncomfortable and nervous when giving a deposition, and rightfully so.  It is not an enjoyable process. By being well prepared yourself and following the following four steps, you can help your witness get through the deposition with a minimum of stress and strain.

1. KNOW THE RULES. Familiarize yourself with the proper deposition objections. Some states allow only “form” objections to avoid spoken objections, but others, as well as the federal rules, require the basis for the objection to be concise.  From the beginning, state on the record exactly what areas of inquiry the witness will be offered to testify on behalf of the corporation.  Make sure you have the telephone number for the judge or magistrate overseeing your case in case you need assistance with unruly counsel.  If you must contact the court, ask the witness to leave the room while the conversation takes place.

2. COMFORT YOUR WITNESS. Meet with your witness a few minutes before the deposition will start.  Explain exactly who will be in the room, what they’re wearing and where everyone is seated.  Introduce each corporate representative to everyone in the room before he/she testifies.

3. TAKE BREAKS. Taking time off during the deposition will refresh your witness and reduce the pressure of testifying.  If possible, break every 45min to 1hour.  Ask the witness to avoid too much coffee, soft drinks and energy drinks before and during the deposition. 

4. FIX ERRORS. Witnesses have the right to correct their prior answers at any time and should not be afraid to do so. It’s better to do this before the deposition is over than to explain an incorrect answer from the witness stand later. Failing that, read the deposition transcript afterward, send it to your witness, and help prepare an errata sheet, if necessary, to serve and/or file within the time limits and rules of your jurisdiction.

If you need help with your company deposition, contact the Deutsch Kerrigan team. We have experience preparing witnesses for corporate testimony in many industries and are ready to help you win your case.

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