by Norman E. Greenspan
As with most litigation, most of the time and expense is incurred in the pre-trial phase known as discovery. During discovery, the parties to the lawsuit have the opportunity to obtain relevant information from each other, and from persons who are not parties to the lawsuit. The most likely sources of useful information are documents, including electronically stored information, and witnesses. Witness information is usually obtained by having the witness testify outside of the courtroom, under oath, with the testimony being recorded, i.e., a deposition. See, Rule 30, Fed. R. Civ. P.
Preparation is the key to a successful deposition, for both the witness and the attorneys. When representing a testifying witness, I want the witness to know what to expect. I want to anticipate everything the witness is going to be asked about, and everything the witness is going to say. I don’t want surprises; lawyers hate surprises.
Preparation for the deposition takes place in advance of the deposition, but not so far in advance that the witness will forget the essentials. It is important for the attorney to plan for the witness preparation meeting. The attorney should learn what the case is about, the client’s role in the case, and have an idea what the client may know about the matter. The attorney should review the complaint and other pertinent pleadings. Any documents that have been produced in the case that pertain to the client should be gathered and reviewed.
At the planning meeting, a number of important things are discussed before we get into the substance of the witness’ testimony. I explain the attorney’s role in the process and the application of the attorney-client privilege to the preparation process. I describe for the witness my understanding of the case, and the fact issues in the case that may involve the witness.