By Dr. Ken Broda-Bahm:
A significant chunk of a witness’s preparation for deposition is going to be case-specific, and an even larger portion should focus on direct practice. But at least some of it will nearly always involve conveying the basic principles of good testimony: the do’s and don’t’s that apply to all deponents. To handle that basic and common phase of the preparation process, a new company is offering a quick online course. The Perfect Witness allows attorneys to register online, and then send invitations to a witness to complete a video course laying out the basic deposition rules and providing examples of good and bad communication behaviors. The attorney is able to check whether witnesses have completed the roughly 60-minute, eight-segment series, and can see how they did on the comprehension checks that appear after each segment.
The site has been mentioned recently in a couple of high-profile blogs. Robert Ambrogi’s LawSites blog post titled “Website Promises to Prep Your Witnesses for You” suggests that the idea is good in theory, but notes that there are other resources available for free on YouTube. Scott Greenfield in his Simple Justice blog is considerably more hostile to the idea, calling it “a gimmick” and a purported “magic bullet video.” Because Ambrogi says he hasn’t seen the video, and it seems likely that Greenfield hasn’t either, I decided to reach into the Persuasion Strategies coffers to pony up the $119 to check it out. After viewing it, I can say the skepticism isn’t warranted. The video series is clear, extremely well-executed, and effective in quickly but thoroughly covering nearly all of the basics I typically share with an inexperienced deponent. No gimmicks involved. Ambrogi’s title notwithstanding, the video also includes the clear advice for deponents to not just rely on an understanding of the rules, but to practice with their own lawyer as well. Unlike the free resources on the internet, The Perfect Witness allows attorneys to check the witness’s completion, and unlike a DVD, the online resource adds interaction by embedding multiple-choice and true/false questions along the way.
After going through all eight segments (and getting a perfect score on the questions, I might add) I am ready to endorse The Perfect Witness. As long as a few commonsense rules are followed — like not using the training as a substitute for in-person meetings — the online training resource is a solid and useful addition to any litigator’s or consultant’s toolbox.
Does “The Perfect Witness” Compete with Attorneys and Consultants?
At first blush, that endorsement coming from someone like me could be surprising. After all, I am a litigation consultant and a fair amount of my work involves meeting with attorneys and witnesses to prepare for deposition. So, do I see The Perfect Witness as competition? No, I don’t, and attorneys shouldn’t either.
Let’s look at it this way: At $119, the program is priced at about a third of my hourly rate (…so just think how valuable all these blog posts are). When covering the basic principles of good communication, I’m not going to kid myself that I could convey these basics any better in 20 minutes than this well-produced and illustrated video series does in around 60 minutes. But that doesn’t mean I’m out of a job, because the basic foundation covered in The Perfect Witness is just that: a foundation. To be useful and to translate into better deposition testimony, these basic principles need to be built upon by being applied to the case at issue and by being practiced extensively.
The Perfect Witness and programs like it do not compete with a good attorney and a good consultant. At our rates, our time should be spent where it matters most: not on covering the routine principles that apply to all witnesses, but on doing the more difficult and sensitive work of applying these principles to the facts at hand, and practicing the testimony until it is a perfect fit for the individual witness.
So What Does “The Perfect Witness” Tell Witnesses to Do?
The basic advice on how one should and shouldn’t behave at a deposition is probably old-hat to most attorneys and all consultants, yet still it needs to be conveyed to nearly every inexperienced deponent, and to many who have been prepared and deposed in the past. Using well-acted scenarios drawn from an employment sexual harassment case, and giving equal emphasis to plaintiff and defense perspectives, the videos cover points that are familiar, but critical:
- Always tell the truth
- Pay attention to your nonverbals
- Dress appropriately
- Practice using video
- Understand opposing counsel’s goals
- Avoid traps set by opposing counsel
- Don’t be rushed
- Let the questioner finish
- Pause before answering
- Take breaks
- Listen to objections
- Answer one question at a time
- Answer only the question asked; don’t volunteer
- Don’t answer a question until you understand it
- Never guess or speculate
- Don’t argue with the lawyer
- Don’t try to tell your whole story
Of course, it is more organized than that. The developers have structured and selectively emphasized this advice based on five rules: 1. Never lie; 2. Always understand the question; 3. Use a purposeful pause; 4. Answer only the question asked; and 5. Never guess. If you had to pick five, that isn’t a bad list to start with.
Should We Fear Juries or Opposing Counsel Learning About “The Perfect Witness”?
Commenter Celia Elwell on the LawSites blog writes “Juries may not like the idea that the witness was ‘trained’ (they may think ‘coached’). I’ll pass.” I won’t speak to the law on whether a witness’s use of The Perfect Witness is discoverable at deposition, but I think that wisdom is on the side of caution. Users should assume that a witness’s viewing these videos outside the presence of counsel could be discovered in response to the question, “What did you do to prepare for this deposition?” So, would there be any concern with opposing counsel standing before the trial jury and saying, “Ladies and gentlemen, let’s take a look at the confidential instructions witness Smith received before his deposition: Roll the tape!”
I viewed the training with exactly that scenario in mind. At the end, my feeling was, “No, I wouldn’t mind at all if opposing counsel did that… in fact, it would be kind of cool if she did.” The reason is this: The video focuses repeatedly and emphatically on telling the truth. And as for the rest of the list above, there is nothing insideous about a witness wanting to be clear and careful. Jurors are likely to appreciate the effort and seriousness. If jurors put themselves in the shoes of the witness, as they’re apt to do, the likely reaction is, “Yes, I would have wanted to have seen something like this in advance if I ever had to testify.”
So, Bottom Line, Do You Recommend It?
I do. After reviewing it, I think The Perfect Witness usefully, efficiently, economically, and safely covers the basic principles of good deposition communication. Still, there are three important rules that attorneys or consultants should follow when using this resource or others like it.
1. Use It as a Supplement to, Not a Substitute for, In-Person Preparation.
As commenter “Lauren H.” notes after the LawSites blog post, “Witness testimony must be ‘case specific’ – there is no ‘stock’ right or wrong that can be taught a witness. This is poppycock!” But nothing in the training or the promotional materials suggests that it should stand alone as sufficient preparation for a deposition. As noted above, the video itself recommends direct practice and videotaping with an attorney. Still, I think it is a “foreseeable misuse” of the program if time-pressured attorneys mistakenly thought “you’ve been prepped” after sending the witness to this online school.
That would be a mistake, however, and the program should not be used in that way. As long as it is a foundation for follow-up meetings, and a way to more efficiently use attorney, consultant, and witness time, then it is a net good. In disagreement with the commenter, I think there are some relatively “stock” rights and wrongs regarding deposition communication, as summarized in the bullet list above. If litigators have an efficient way to get those across prior to the more substantive training, then why not use it?
2. Review the Video First.
As shown by the list above, the material covered in the videos is basic, and I believe widely accepted by attorneys and consultants alike. There are no radical practices or controversial strategies hiding in the program. Still, we all have our own take on what works when preparing witnesses. And, more basically, attorneys must take responsibility for anything they give a witness. They need to be able to say, “I’ve seen it, and I agree,” or “Here is a point I would emphasize differently from what you saw on the video.”
To facilitate that review, the owners of The Perfect Witness should provide a reduced price for a preview, or even allow a free preview to anyone who registers or holds a current ABA membership.
3. Don’t Accept Everything.
While the eight video segments generally convey the common wisdom, there are naturally a few points where I and others might differ. For example, I could see the advice to “think like a lawyer” being taken the wrong way. It is definitely wise to understand the basic strategy of what opposing counsel is asking and why. But it is definitely dangerous to take that to the point of trying to “out-lawyer” your adversary. A witness who tries to be too clever or too legal risks being perceived as more tactical than honest. Witnesses should be aware of what opposing counsel is trying to do, but while “thinking like an honest witness,” not “thinking like a lawyer.”
An additional point of difference relates to the importance of good nonverbal communication. Both the video and the follow-up quiz note the need for making a good visual impression “when the deposition is videotaped.” But even when it isn’t, witnesses are still making an impression on opposing counsel and demonstrating what kind of witness they’ll be at trial. Because these assessments often drive settlement, I always recommend that it is wise to show your best, camera or no camera.
The most important point of difference, however, relates to leading questions. Missing is the advice for deponents to answer in their own words. In contrast, the video content and the follow-up questions note that “the four best answers a witness can use in a deposition are ‘Yes,’ ‘No,’ ‘I don’t know,’ and ‘I don’t remember.'” I disagree. In my experience, a hallmark of a good deposition is that the witness chooses her own language instead of uncritically accepting counsel’s words. That doesn’t mean straying from the question, and it doesn’t mean filibustering. Answering in a simple but complete sentence is one of the best ways to resist being misled and to protect the deposition record.
There is one additional thought about the online training that I want to note. Both blogs that looked at it so far have raised the point of the site not having a clear author, or as Greenfield describes, it “conceals its owners.” While the website is not very clear on the personnel involved, I did find that with a simple email to “email@example.com,” I learned the name of the Houston construction attorney who is behind it, so I don’t think there is anything sinister at work. Out of an abundance of caution, they probably don’t want to be associated with a named law firm. Still, I would recommend that the owners create a more comprehensive “About Us” page on the website, focusing on the background and specific experience of those who designed the training, including those who developed the script and the examples. No real issue, but users will probably be more comfortable having that information. After all, it is one of the principles that drives witness preparation: Source credibility matters.
Bottom line: The Perfect Witness provides a good foundation for preparing a deposition witness.
Note: Reviews aren’t the focus of this blog, but I do occasionally review litigation-related products, and I’ve given both good and bad reviews. It should go without saying, but these days it doesn’t: This is an independent review. I’ve received nothing for it, and I have no relationship – business, personal, or otherwise – with “The Perfect Witness” or its creators.
Other Posts on Deposition Preparation:
- Witnesses, Don’t Get Too Comfortable
- Diagnose Your Difficult Witness
- Keep Your Witness Out of the Woodshed
Image Credit: Created by the author.