by Dr. Ken Broda-Bahm:
For the witness preparing for trial testimony, there is one common piece of advice: Study your deposition. In preparation sessions, I will always stress this advice, noting that a thorough knowledge of the deposition is both your sword and shield during trial testimony. Not only does it avoid or blunt the effects of impeachment, it also helps in letting the witness know exactly where opposing counsel is going and why. Of course, most witnesses will review their deposition before trial. But, in my experience at least, fewer witnesses will study that deposition enough. Just having a copy is not enough. Just skimming through it is not enough. Even reading it cover to cover is not enough. Instead, a truly prepared witness will have read it more than once, and will have read it actively in order to have an understanding of the topics covered, the ways the key questions were phrased, and the precise language of the most important answers. When the witness knows the prior testimony at that level, cross-examination is a lot more difficult for opposing counsel.
The problem is that some witnesses, probably most, will stop reviewing the deposition once they feel like they are generally familiar with it. The research, however, shows that they should keep going. A new study (Shibata et al., 2017) focuses on "overlearning," or "the continued training of a skill after performance improvement has plateaued." The result is that continuing to study, even after you have that "I've got it" feeling, yields some definite benefits. Focused on a learning task, the study found that spending even 20 minutes past the plateau point in learning, lead to significantly greater retention of information. The thinking is that, after we learn something, that knowledge is initially "plastic" rather than "stabilized." That means that, even though it is well understood at the moment, it is vulnerable and in danger of being overwritten, in effect, by new knowledge. Overlearning seems to combat that vulnerability by locking in the information. According to one of the study authors, Professor Takeo Watanable, “These results suggest that just a short period of overlearning drastically changes a post-training plastic and unstable [learning state] to a hyperstabilized state that is resilient against, and even disrupts, new learning.” So extra review is good advice for anyone trying to learn new information. In this post, I will share a few recommendations for witnesses seeking to know their deposition testimony prior to being examined at trial.