Best Practices When the Corporate Client is Deposed

E-discovery has increased both the demand and importance of corporate witness testimony. After culling, application of keywords, technology assistance and responsiveness review, a general rule of thumb would be for the witness preparation team to expect to analyze between 15,000 and 20,000 produced emails and attachments per custodian. Those at the receiving end of this new wave of discovery — institutional clients and their employees — can benefit from a consistent, cohesive approach to getting prepared and offering testimony. The preparation needs to be visual and needs to be tethered to something already understood by the witness. The author uses the acronym PLEASE: Prepare. Listen. Exercise control. Accept the obvious. Stay in your area. Emotion is O.K.

As no one can predict with certainty what documents will be used with the witness, provide a simple framework from which to evaluate documents. Depositions always include “gotcha” questions, so make sure witnesses are prepared. The number one goal is to preserve the credibility of the witness and give him or her the tools to know what types of questions can form an agreement.

Jurors demand authentic and, hopefully, captivating storytellers they can identify with. As plaintiffs become more adept at crafting their deposition exams to create jury-friendly nuggets in advancing their narratives, defense counsel must up their game. Employing a simple but successful paradigm that carves out a clear roadmap is the best way to get witnesses prepared for the task of testifying in a case.