How to Prepare a Witness for a Deposition

A deposition witness must swear to tell the truth.

Deposition witnesses are often nervous -- understandably so. For hours, the witness must answer all the questions her opponent's lawyer decides to ask. She must pay close attention to each question, answer it truthfully and repeat the process until the deposition ends. She must not daydream or lose focus. She relies on her lawyer to adequately prepare her for her deposition so that her answers to the questions do not harm the case.

Instructions

1. Meet the witness in a private location, preferably an office. If you are an attorney and the witness is your client, your communications with one another are confidential under the attorney-client privilege. You can inadvertently waive the privilege if someone overhears your conversation with the witness, so take precautions to keep your discussion confidential.

2. Describe the physical setting of the deposition for the witness. Tell him that the court stenographer will be there to administer an oath of truthfulness and to record every word he says. If the deposition notice provides for a videographer, explain that a camera operator will film his testimony. Explain that he can take breaks when he needs them.

3. Explain that a deposition takes place in question-and-answer format. Opposing counsel will ask a question, you may object to the question or the witness will answer the question. The witness should pause to give you a chance to voice your objection before she answers.

4. Tell the witness to listen carefully to each question, then ask himself if he understands the question. If he doesn't understand it, he should ask opposing counsel to explain or rephrase the question. If he understands the question, he should ask himself if he knows the answer to the question. If he doesn't know the answer, he should answer, "I don't know." If he knows the answer to the question, he should answer it truthfully -- but only if he can answer without revealing details about his confidential discussions with you, his lawyer.

5. Show the witness key documents that the opposing lawyer is likely to ask her about. Tell her that, if opposing counsel shows her a document, she should review it thoroughly before she answers any questions about it.

6. Roleplay with the witness. Play the role of the opposing lawyer, and ask the witness questions that he may be asked during the deposition. Let the witness give answers as if he were being deposed. This interaction will help make the witness more comfortable when the time comes for his deposition.

References

• EEOC; Deposition Practice and Mock Deposition; Gary M. Gilbert, et al.; 2009