The other side has noticed the deposition of your client’s CEO. Now what?
Preparing any witness to testify can be a delicate task, but CEOs and other senior executive witnesses pose unique challenges. Accustomed to being in control in their business environment, CEOs can have a hard time maintaining control during a deposition. They may have strong personalities that could be misunderstood by a jury. For a host of reasons, special care needs to be taken in preparing high-level executives for deposition. Here are a few ways to set your CEO deposition up for success:
There Is No Substitute for Time
One of the main challenges to preparing a CEO deposition is scheduling time to prepare. Executives have full schedules, and your case probably is not a very high priority compared with their other responsibilities. The CEO will likely try to limit prep time down to the bare minimum, not realizing how critical his deposition can be for the ultimate outcome of your case. But you must impress upon your witness the importance of being prepared. That will require the time and attention of your witness in advance of the deposition. It may help to split your meetings into multiple partial-day sessions so that your witness never has to give up a full day to meet with you. In any event, do whatever it takes to persuade your witness to spend sufficient time with you to be ready for their testimony.
CEOs Need Prep, Too
CEOs are usually highly competent individuals that are used to being treated with deference based on the position they have achieved. But just because your witness had the skill and ambition necessary to be CEO does not mean she can wing it during her deposition. You will need to dig down and prepare her just like any other witness.
Rapport is important, so spend some time during your prep session getting to know your witness. Explain the posture of the case, then spend the time necessary to walk the CEO through the same basic preparation any witness needs: familiarity with the documents to be covered by the deposition, an understanding of how a deposition is conducted, and training in how to respond to questioning generally.
Special Considerations for the CEO Deposition
But you will need to go beyond the basics when prepping the CEO. He is accustomed to being in control, but if he tries to assert control during the deposition the same way he does in the business world, the result can be disastrous. Explain that calm, forthright responses to questions are the best way to maintain control in a deposition. Sarcasm, evasiveness, or posturing by a witness can irreparably damage your case, especially during a video deposition. Teach him how to remain calm, pause briefly before answering to allow time for you to object if needed, and to patiently answer repetitive questions. Explain that his job is to give accurate testimony, not win the argument. Tell him that opposing counsel would love nothing more than to rattle his cage, but he cannot let that happen.
Practice, Practice, Practice
A video practice session can be especially helpful with a CEO deposition or other high-level executive. Executives may not typically receive criticism well, but if you subject your witness to vigorous questioning and show her the recorded responses, she may be more open to critique after seeing first-hand how she appears on the video.
Using a third party communicator to assist with your witness also may be valuable. A third party can be more direct with your witness about the need to change the way she communicates without being concerned about damaging the attorney-client relationship. Ultimately, however, it is better to be direct with the witness during the deposition prep session than to deal with damaging testimony at trial.
Why Bother?
If all of this seems like more trouble than it’s worth, remember that an unprepared witness can inflict serious damage on your case, particularly when that witness is someone as high profile as the CEO. A prime example of a CEO deposition gone bad is the infamous deposition of Bill Gates taken in the U.S. v. Microsoft case. Gates was seen on video rocking back and forth in his chair, acting as though he did not understand the most basic questions, and generally being uncooperative. His demeanor made him appear evasive and untrustworthy. The consequences were devastating – the judge even laughed in court when the video segments were played. Needless to say, the deposition was an embarrassment for Microsoft. It also played into the government’s hand by casting doubt on Gates’ credibility.
Don’t set your CEO witness up for failure by assuming he will do fine with the bare minimum. Instead, push to get the appropriate amount of time with your witness, then do the work of preparing him to testify. And be honest about the challenges he will face during the deposition if you want to maximize his chances of success.