January 19, 2021

Volume XI, Number 19


January 18, 2021

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Deposition Preparation: The Key to a Successful Case

No aspect of defense preparation of a lawsuit it more important than the preparation of an insured or insurer’s personnel to testify at deposition. The principle goal of witness preparation is to produce a witness who is both confident and credible and who will testify truthfully about what he or she knows and will not speculate about matters outside his or her knowledge. Effective witness preparation requires that the person to be deposed understands the particular issues and concepts presented in the litigation. They must understand the themes that embrace the case itself.

There are certain ethical considerations which must be kept in mind. Ethical rules prohibit counsel from advising a witness to give false testimony. Counsel can discuss the witness’ recollection and probable testimony and can discuss the aspects other witnesses’ testimony which may result in the witness reconsidering anticipated testimony. Above all, a witness must testify truthfully.

Many times opponents will issue notices for CEO or Apex depositions. These are mainly done solely for the purposes of harassment as opposed to an actual request to obtain discovery information. Sometimes they are designed to generate unfavorable publicity or to create leverage for settlement. Upon receipt of a notice for a CEO deposition, counsel should move for a protective order per FRCP 26(c)(A) to quash the notice. Often an affidavit can be submitted showing that the CEO lacks specific knowledge as to the specifics of the claim or that the area of inquiry is better handled by others. Counsel should also offer to have the CEO answer written interrogatories rather than appear for a deposition. The use of a protective order can be made to limit the subject matter agreed upon or stipulate that there is no duplication of other testimony.

Many times Rule 30(b)(6) deposition notices are issued in order to solicit testimony of the Company itself. The Rule 30(b)(6) deposition is used to solicit testimony as to what the Company knows. The person is testifying as the Company spokesperson. The Rule 30(b)(6) designated witness has an obligation to find information responsive to the Rule 30(b)(6) notice, which generally sets forth specific areas of inquiry. More than one person can be the designated witness.

In preparing the witness, the deponent needs to know their role in the case. In addition, the deponent must learn to control his or her demeanor at the deposition, dress professionally, and pay attention to his or her posture and position. It is important to attempt to take control of the questions and dictate the appropriate responses. The deponent should work with counsel to fully prepare for the testimony. Practice examinations should be utilized in appropriate situations. Videotaping the practice exam can be extremely beneficial to both counsel and the witness.

The witness should avoid inventing testimony to satisfy opposing counsel. The witness should never speculate. It is important for the witness to always listen to the question and before giving an answer, to make certain that they understand the question. Once answered, determine if the answer is based upon personal knowledge. Witnesses should relate only what is known, not what they think they know. If the witness does not understand the question they should tell opposing counsel that the question is unclear. The witness should never attempt to analyze where opposing counsel is going with the question. Witnesses should consider the question, formulate their answer, and state it concisely and then wait for the next question. Above all, it should be remembered that the claim is not personal, it is about the facts of the case.

Effective witness preparation can make a big difference in a case, either to prompt a reasonable settlement or for trial preparation.

©2020 Johnson & Bell, Ltd. All Rights Reserved.National Law Review, Volume , Number 86



About this Author

Glenn Fencl, Johnson & Bell, insurance lawyer

Glenn F. Fencl is co-chair of Johnson & Bell's Insurance group, with a concentration in product liability and insurance coverage. Mr. Fencl has handled numerous declaratory judgment coverage trials in several jurisdictions, is lead trial lawyer for several national manufacturers and has more than 25 jury verdicts. He has given several presentations and has authored numerous ...