Ten Commandments for Preparing the Deposition Witness

In most jurisdictions there are significant restrictions on what the defending lawyer can do with respect to objecting to questions, directing the witness not to answer or conferring with the witness after the deposition begins.

The restrictions found in the Rules of Civil Procedure, local court rules or individual judge’s rules effectively require defense attorneys to maintain silence during depositions.

As a result of these constraints, the deposition witnesses must largely be able to fend for themselves. This makes it essential for a witness to be thoroughly prepared by counsel.

The lawyer has an ethical as well as a professional duty to prepare the client. Counsel may not help prepare false testimony. However, as long as the testimony is not false or perjured and is the witness’s own testimony, the lawyer has not crossed an ethical line. The lawyer can explain the law, and seek to persuade a witness that his/her initial version of a fact situation is not accurate.

Counsel also can make the witness aware of how others have testified on the same subjects. But the lawyer may not influence the witness to alter testimony in a false or misleading way or put words in the witness’s mouth.

The author suggests that counsel and witness meet twice, once shortly after receipt of the notice of deposition and again as close to the date of deposition as possible.

This article includes a 10-point checklist for witness preparation.