Bill Gates made a bad video deponent. Could his lawyers have helped him more — by bonding with him, for example?
Blawgletter has concluded after 22 years of preparing witnesses to give depositions and testify at trial that even the finest testifying techniques can do only so much if you — yes you, the lawyer — don’t establish a good personal connection with the testifier.
The conclusion came back to us the other evening as we visited with a famous trial consultant. A smart and insightful man, the consultant reminded us of the "witness school" — available for a fee — to us and our clients.
We don’t recall that witness schooling services existed when we started practicing in 1985. They didn’t come into vogue until after the pre-video deposition era, during which perfection in witness preparation still seemed possible.
Back then, the transcript didn’t show a deponent’s hesitation, his glancing at his lawyer for how to answer, the whisper-whisper conferences between witness and lawyer, or even the deponent’s shifty eyes and constant rocking motion as if to comfort himself. It reflected only the perfect responses to each question. Now of course the video shows all.
So you can’t have a deposition witness who looks incredible. She needs to do as well in deposition as she ought to do at trial.
But how can you help the witness avoid the appearance of unbelievability? Simple — by convincing her that you believe in her, that you care about her, and that you will work hard to help her avoid avoidable mistakes.
How do you persuade the witness of those things? The normal preparation work remains essential: review of the key documents, discussion of the legal and factual issues in the case, and anticipation of the toughest questions.
But you must also promise the witness that you will also concentrate as much as he does during the deposition. Tell him that, because he has to wear his coat while testifying at deposition, you will keep yours on, too. (Many lawyers shed their jackets, lean back in their chairs, and check their emails or buy stuff on amazon.com during their "defense" of a deposition.) Assure him that, the few times you do make an objection, you will do it only to prevent him from saying something inaccurate and not to engage in lawyers’ nit-picking. (Lots of lawyers jabber objections in hopes of throwing off the questioner or impressing the client with toughness, but usually with the main effect of causing the witness to peg him as someone who thinks the world revolves around him.) And your objections will come if, but only if, the witness has started rambling, volunteering, tiring, or otherwise behaving in ways that could lead to incorrect testimony. (Too many lawyer comments during deposition show just how little the lawyer has paid attention.)
The time when you could prepare a witness to give perfect testimony and then sit back and watch him give it has gone. For at least the last decade or so, the unwinking eye of the camera has demanded prompt, firm, and confident answers. We’ve adapted slowly to the new reality. But the good news is that your witness can better meet the demand for spontaneity if she knows you will protect her from error and that you won’t confuse her by talking too much.
Bond with your witness. Or suffer the consequences.