By Thomas M. O’Toole, Ph.D.
There is a popular 3M study that is often used to support the argument that attorneys should utilize more graphics in trial. The study found that audience members retained as little as 10% of the information three days later if the presentation was oral only; however, when presented the same information through both oral and visual presentation, the retention rate jumped to 65%. While this study is most often used to support the argument that presentations need a visual component, its implications can be applied to other areas of litigation. One that comes to mind is witness preparation for deposition. Many attorneys meet with witnesses a few days in advance of their depositions to review the relevant case documents and tell the witness what to do. In some instances, a jury consultant will participate to help the witness overcome barriers to effective communication.
One of the most common problems I have observed is information overload. To be more specific, many attorneys spend time in these sessions providing the witness with extensive tips on how to deal with different issues in the case, strategies that might be used by opposing counsel, and a variety of other random thoughts. This may appear reasonable since the attorney is simply trying to get the witness up-to-date and prepare him or her for all of the nuances of the case that may be addressed in the deposition.
The problem is, if you apply the findings of the 3M study to this situation, there is a significant chance of failure since the witness will likely remember as little as 10% of what the attorney tells him or her. Even more problematic, the study does not account for the unique nuances of witness testimony. These are:
1. Public speaking (which is essentially what testimony is) has long been recognized as one of human beings’ greatest fears;
2. The “legal” nature of the setting invokes fears in the witness about the consequences of screwing up or getting something wrong; and
3. There are many other external fears the witness might have. For example, how his or her performance on the stand might impact other areas of their life (e.g., their job stability, especially if they are part of a lawsuit involving their boss/job).
This is just the tip of the iceberg on why the information overload approach to witness preparation does not work. Instead, attorneys need to focus witnesses on simple, broad rules that will help them get all of the little things right.
I start every witness prep session with three simple rules that account for the vast majority of ways in which witnesses screw up their deposition. It is much easier for a witness to remember three major things rather than 50 little things the attorney tells him or her over the course of the session.
Additionally, the key is that during the session we practice their testimony. Nothing beats a good role-playing exercise. In the session, the attorney plays the role of opposing counsel and the witness responds as if the session is the actual deposition. We will role-play for 5 – 10 minutes and then take a break for feedback. When providing feedback, I try my best to link the feedback to one of the three simple rules for reinforcement.
Here are the three simple rules:
1. The most important job of the witness is to listen carefully to the question and answer only that question. So many witnesses hear a question and start wondering what the attorney is trying to accomplish by asking the question. This often leads to nonresponsive and defensive answers because the witness is actually answering questions he or she thinks will follow the question that has actually been asked.
2. Every answer should come from one of three categories: 1) What the witness knows and remembers, 2) what the documents show, and 3) what the witness’s common practice is/was. Anything beyond this is speculation and guesswork and should be avoided at all costs. Witnesses need to know that “I don’t know” is a perfectly acceptable answer if it is the honest answer. It is okay to be helpful and make educated guesses in social conversation, but not in a deposition.
3. Be on guard for opportunities to disagree with assumptions and characterizations in the questions. If I were to ask, “Did you buy that ugly shirt at Macy’s?” the witness needs to understand that he or she is not restricted to a “yes” or “no” answer. Instead, it is important to say, “I disagree that it is an ugly shirt; but yes, I purchased it at Macy’s.” Furthermore, the witness needs to correct the characterization every time it occurs. It is insufficient to correct it only once and let it go the next time. I tell witnesses that questions that begin with “would it be fair to say,” “so what you’re saying,” or “can we agree” are usually ones where disagreement should occur since these are standard lead-ins for loaded questions.
While there is a long list of other issues that may arise in a deposition, I have found that the majority of the problems witnesses face in depositions come back to a violation of one of these three rules. This is why I spend so much time instilling these rules both through discussion and practice. Instead of addressing every conceivable problem in the preamble to the practice session, focus your initial feedback and address any additional problems only as they arise.