By Dr. Ken Broda-Bahm:
Listen, pause, use your own words, and then stop. Sometimes witness advice should be covered in detail, and at other times you just need to bottom line it. A week or so ago, I was arriving for a meeting with attorneys just as a witness was leaving. "Is there any simple advice you would convey before his deposition?" one of the attorneys asked. What I came up with on the spot is just that list of four: listen, pause, use your own words, and then stop. At the time, I noticed that the attorneys in the room wrote that list down in their own notes. Since then, I've used that simple quartet in a few other meetings with similar effects. So, I thought I might be onto something, and this may be a list worth sharing. If there is one sentence I would want witnesses to keep in mind as they head into a deposition, it would probably be that: listen, pause, use your own words, and stop.
Of course, there is a great deal more to effective testimony. The list of do's and don'ts could go on for hours, and there is a nuance to much of the advice: "Say enough, but not too much," or "Don't be led, but don't be combative either," for example. These questions of balance can only be resolved in the context of sustained practice focused on the witness's own fact pattern with specific feedback offered. It doesn't take much for the other side to gain something pretty useful in a deposition: A witness who is 99 percent effective can still end up giving away too much during a bad moment. But even after witnesses have heard all the do's and don'ts, and even after they've had a chance to practice, many witnesses will still want a simple mantra they can hang onto and internalize. For this post, I want to briefly break down those four simple rules.