Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Preparing the Witness to Win the Deposition Battle

As fewer cases are tried and more are settled, depositions take on greater importance. Depositions often provide a significant part of the data used to analyze the settlement value of a case. We look at whether the witness was convincing and whether she effectively spoke to the major issues of the case. Depositions also may significantly influence motion practice that can determine settlement value. Gone are the days when we simply prepared most witnesses to avoid problems. Today we must prepare the deposition witness to help enhance the case settlement value. Effective deposition preparation begins with preparing yourself, tailoring the preparation to the size and characteristics of the case, understanding the role and ability of the witness, establishing goals for the deposition, and practicing with the witness to ensure the goals can be met.

Preparing yourself

While preparing yourself to prepare the witness may seem obvious, it often gets lost in the press of other immediate concerns in our busy professional lives. Your preparation of the witness is not likely to be effective unless you first prepare yourself. This begins with knowing the factual elements of each claim and affirmative defense. It is helpful to review the pleadings in the case to determine which of these elements are in dispute. You must understand a witness’s role in the controversy so you can match the witness’s likely knowledge with the contested factual elements of the case. Now you know where to focus your preparation. Understanding the financial importance of the dispute, the number of factual issues, and the issues that a particular witness can speak to will allow you to determine the amount of time necessary for the preparation. Reserving an adequate amount of time on your schedule and that of the witness avoids misunderstandings and allows for good witness preparation.

Many commercial cases involve a staggering volume of documents. Allowing these to consume your preparation time may be easier than thinking through the issues, but will distract you from the most important aspects of preparation. Documents should be managed before you begin preparation of the witness. They should be sorted (whether by computer, legal assistant, or an attorney) according to witness, importance, issue, or date. A chronology of events and documents will help you see the overall picture. Limiting your document review to those that are important for this witness will allow you to prioritize documents to review with the witness and understand the witness’s role in contested events. Pick out a limited set of documents to review with the witness.

Tailoring the preparation to the witness

One-size-fits-all preparation does not work well. First, determine whether you will represent the witness in the deposition, hire independent counsel, let the witness be unrepresented, or recommend she hire her own counsel. Where possible, it is advisable to represent the witness so the preparation is protected by the attorney-client privilege. But remember that representing a potentially adverse witness can lead to conflicts and ethical issues. The question to ask is whether this witness’s position on the facts is consistent with the position of the party you represent. If it is inconsistent in any major respect, don’t represent the witness since you may have to cross-examine at trial. If the witness and your primary client may have a dispute arising out of the facts of the case, don’t represent the witness or later conflicts may interfere with your continued work on the matter. The decision to represent a witness should be made with your primary client and then explicitly agreed upon by the witness after a full discussion of the benefits and risks, including the fact that any information provided by the witness will be available to the primary client.

Your preparation should maximize the potential benefit of the witness to your case while minimizing the risks of incorrect or inappropriate testimony. To do this you must understand the different types of witnesses and where your witness fits.

  1. The Eager Student: This witness will study the documents and pleadings, understand the issues, and can be an effective advocate for your position in the deposition. Focus your preparation on key issues and strategy, and encourage the witness to be expansive in testimony where it is helpful.
  2. The Clueless Witness: This witness may lack the ability or the interest necessary to master the material. Focus him on the most crucial issues, avoid getting bogged down in details, and limit the potential for damage. Don’t try for a homerun.
  3. The Big Shot: This witness thinks he is too busy or too important to devote the time necessary to prepare. Convince him of the value of preparation. Take advantage of this Type A personality by setting goals. Limit distractions in your preparation session. Be prepared to take breaks to keep this witness on track during the deposition.
  4. The Fearful Witness: This witness is intimidated by the case and/or the deposition process, which may make her equivocal or evasive. Dispel any undue concern by explaining the process fully. Review key questions and answers to give the witness confidence. Watch for the witness’s instinct to ingratiate herself to the questioner by giving testimony she believes the questioner wants.
  5. The Armchair Professor: This witness loves to hear himself talk and will gladly speculate about anything. Emphasize the danger of speculation, and focus the witness on the limited facts he actually knows. Emphasize that answers should be short and to the point.
  6. The Jellyfish: This invertebrate witness is subject to pressure from the questioner, and may change his testimony in response to repeated, skillful, or forceful questions. Review key questions and answers and emphasize “safe harbors”—safe, accurate, thematic answers to difficult questions. Be prepared to object to improper questioning, and encourage the witness on breaks to stick to his position.
  7. The Pugilist: Some witnesses are unduly adversarial, and may look for a fight with opposing counsel. Explain that this is your responsibility, and the witness may harm her case by arguing with the questioner.
  8. The Impatient Witness: Some witnesses are impatient or incautious. They do not listen to or process the questions before answering, and they risk providing inaccurate or unhelpful testimony. Focus your preparation on technique—listening, thinking, answering—as well as key issues. Be prepared to interrupt the witness at deposition to remind her to wait for a complete question.

Some initial discussion with the witness should give you a good idea of the category (or categories) your witness falls into so you can tailor the preparation to the type. You may find it advisable to cover only a few points with the fearful witness, for example; you certainly don’t want to emphasize how important it is to be cautious. You should develop goals for the deposition based on the strength of the witness and the witness’s knowledge of the case. With the talented and helpful witness, plan some direct examination to make sure your favorable points are covered in a way that will impress your adversary with the strength of your case.

Actual preparation

Whether or not you will represent the witness, it is helpful to take a few moments to establish some rapport. As an initial matter, make clear to the witness your expectation that she tell the truth at all times with you and during the deposition. Before asking the witness any detailed questions, describe the lawsuit and your client’s position on the major fact issues in the case. This will allow the witness to put your questions into the context of the case. Ask the witness if he disagrees with any of your client’s factual positions. The answer will allow you to make a final decision on whether you should represent the witness.

Prepare the witness to exercise a degree of control over the deposition. Explain the setting, the people present and their roles, the video routine, if applicable, the function of objections, and the need to answer all questions unless instructed otherwise. Depending on the ability and character of the witness, you may want to instruct them on good deposition technique as follows:

  1. Listen carefully to each question and determine whether you understand the question before answering.
  2. If you do not understand the question, ask for it to be read back, or ask the questioner to rephrase or clarify.]
  3. If you do understand the question, take the time to think through the answer before you speak.
  4. Answer the question truthfully and completely, including “I don’t recall” and “I don’t know” where appropriate. Then stop speaking.
  5. You may always give a complete answer.
  6. If it is necessary, you may privately discuss issues with counsel, provided there is no question pending.
  7. In most jurisdictions—but not all—these discussions are privileged.
  8. Do not argue with counsel; that is the attorneys’ job.

Prepare the witness for the examiner’s style so the witness will not be surprised by:

  1. the ingratiating examiner;
  2. the combative examiner;
  3. the repetitive/relentless examiner; or
  4. the examiner who repeats and modifies testimony.

The witness should be prepared on the key factual points at issue. Don’t let the witness get lost in the minutiae of the case. You have mastered all of the small points, but most witnesses are unlikely to be able to do that. It is up to you to determine how much detail the witness can master, but make sure the mastery is of the key points at minimum.

The use of documents in preparation is often problematic. Some witnesses will review and master documents before the preparation session begins; most will not. It is easy in a preparation session to read documents with a witness, but it is not effective preparation. Keep the number of documents reviewed with the witness to a minimum and focus on making sure the witness recalls and can testify to key facts.

Make sure you understand why you are showing each document to the witness. There are often two or three key documents in a case: the contract in a contract dispute, for example, or the email from the opponent that a party relied upon. These deserve your attention. You should have a “key” document file and some of those may be applicable to this witness. Think critically about the relationship between the documents and the witness’s testimony, and have a good reason for any document you show her. Why would you show documents to a witness that were not sent to or received by that witness? If the witness recalls a material fact, why would you review with the witness documents that mention that fact? The point is to concentrate on the key facts and not lose yourself and the witness in a welter of documents.

For most witnesses, there are three or four key points that can have a significant impact on the case. These should be reviewed multiple times during the preparation. Very few witnesses will retain all of the preparation the first time. Preparation often reveals some uncertainty from the witness about a fact, or makes it clear that it would help to refresh the witness about a matter even though the necessary material is not immediately available. If you have scheduled the preparation session at least a few days before the deposition, you will have time to locate this factual material and appropriately refresh the witness’ memory.

You should make clear to the witness that her credibility will be a significant factor in successfully presenting the case. This will allow you to emphasize the importance of being truthful. You should also make sure the witness appreciates that mistakes in testimony do occur despite the best of intentions. Point out that if you see a mistake by the witness, you will prompt the witness to correct the mistake. If the opposing party confronts her with a mistake, she should be forthright in acknowledging it. Finally, we will reserve the right to review the transcript and can correct mistakes if any occur.


After preparing the witness it is worthwhile to practice some examination in the style you expect from your opponent. This practice session should cover the key fact issues in the case. At the conclusion, jointly assess with the witness whether her responses were accurate and complete. You may find that there are areas that need additional preparation. Continue that preparation until you and the witness are satisfied with the responses.


Your witnesses’ deposition testimony can make the difference between success and failure in litigation, by influencing settlement value or even determining the outcome of dispositive motion practice. Thoughtful preparation of yourself and the witness are the first, necessary steps toward successful execution on the record. 

TOM TINKHAM was a trial partner at Dorsey & Whitney and head of its trial group for a number of years and today is of counsel. He is past president of the Hennepin County and Minnesota State Bar Associations. Currently he teaches trial practice and does pro bono work.

ANDREW BRANTINGHAM is a trial partner and member of the health litigation practice group at Dorsey & Whitney. Andrew’s practice focuses on medical and business litigation in the health care industry, including representation of providers, payors, and device manufacturers in a wide range of disputes in trial, appellate, and arbitral forums.

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