By Alan Hoffman on November 2, 2017
Preparing witnesses for their depositions is an important task in discovery, and particularly so in product liability cases. Product knowledge and expertise is often scattered, and sometimes reside in former employees. Loaded questions about “safety,” design choices, warnings and directions are often perplexing for witnesses.
In the Beginning
Careful advance planning is essential. For client witnesses the process should start before depositions are scheduled, while collecting documents and information from the outset of a case. Those knowledgeable should be identified as early as possible, advised about their litigation hold duties and responsibilities, and informed that they must not discuss the case with anyone other than counsel.
The time and place of depositions should always be established by agreement, if possible, and ample time provided to meet with the witness. Ordinarily witnesses should not be exposed to documents that have not been previously identified and produced, since documents reviewed during preparation are usually fair game for examination.
Everything possible should be done to acquaint witnesses with what to expect and to reassure them. They must listen carefully to every question, refrain from answering quickly and avoid a running dialog with the questioner, allowing time for objections. Objections are normal and essential to protect the record and the witness. The witness should stick to the facts, avoid speculating, and give no opinions unless they have been carefully discussed in advance.
Witnesses should understand that they need not have an answer for every question, and that it is proper to say so when they don’t know the facts or how to answer. Their questions and concerns should be identified and fully addressed. Time should be taken to explain the procedure and the issues in the case concisely and in clear terms.
The issue of “coaching” witnesses can be difficult. It is improper to tell a witness how to answer a particular question or to encourage factual misstatements, but there are a multitude of ways in which every question can be truthfully answered. In answering, it is essential to stick to known facts, and avoid everything else.
In cases where the cost is justified, and the party is willing to invest the time and effort, the preparation can include a video recorded mock deposition. In other cases, it can be useful to show illustrative video excerpts from other depositions.
The High, the Mighty, and Others
Preparing senior business personnel has its own challenges. Their time is valuable and must be used efficiently. Some make excellent witnesses, understand the big picture and have skill in fending off difficult questions. Others are impatient, regarding the deposition and preparation as a needless inconvenience and distraction. In-house attorneys can be helpful in preparing, and often wish to participate. Their knowledge of the firm, its business and its personnel can be of great value.
Low level employees are often unfamiliar with depositions and nervous about them. Everything possible should be done to put them at ease and reassure them. They may have difficulty resisting assumptive, argumentative and poison pill questions, and questions calling for opinions, speculation and conclusions they are not qualified to give. The correct answer to such questions is “I don’t know.”
Federal Rule 30 (b)(6) and State analogues permit the deposition of organizations, including partnerships, associations, governmental agencies and “other entities” as well as private and public corporations. The notice, or subpoena to a non-party, must describe with “reasonable particularity” the matters for examination. The organization has the right to select the best witness or witnesses to testify on its behalf about the product, its design, manufacture, and warnings. Its counsel has the right, and the duty, to educate them about the information known and documents available to the organization concerning those matters.
Former employees present special difficulties. State privilege law varies widely on whether, when and to what extent communications with them are privileged, so everything said and done in preparation may be fair game in the deposition. A disaffected former employee can be a real danger, but the testimony of a former employee who left under less than ideal circumstances can be highly credible and effective.
The Human Element
Finally, each witness is an individual, with unique personal qualities, strengths, and weaknesses. Preparation is a chance for lawyers and witnesses to get to know each other and establish rapport and trust, allowing witnesses to be calm, confident, and do their best.