Anti-woodshedding Trend Raises Bar on Skillful Deposition Preparation

March 2011

By Michael R. Callahan*

Recent cases further limiting coaching or so-called "woodshedding" for depositions have placed even greater importance on skillful deposition preparation. This brief note is to emphasize the importance of those efforts.

Because 95 percent of all litigated cases settle, those factors that significantly affect the settlement value of a case are of particular importance. Most cases begin with a reasonably good understanding of one's own version of whatever happened.

The three traditional discovery tools (interrogatories, requests for production of documents and deposition) should produce a more focused view of the opposing version of the operative events. While all of the tools are useful, it is the well-taken or defended deposition that usually produces the most valuable incentives to settle.

Interrogatories, even the most carefully crafted, often produce nothing more than carefully studied, lawyerly non-answers. Until the ease of uncontrolled publication of unedited email, most writing was rather thoughtfully crafted. The new email freedoms seem to produce more gold.

But it is the deposition where the client is most exposed to the skills of opposing counsel. The language of recent cases condemning coaching and "woodshedding" may soon be used to reach too far. While attorneys are supposed to enjoy extensive leeway in preparing a witness to testify truthfully, they may not influence witnesses to alter their testimony in false or misleading ways. It is those claims of misleading answers that bear too much of a risk.

There can be no question that skillful cross-examination may leave even the most truthful witness appearing vulnerable and even dishonest. Inhibiting or further restricting the lawyer from protecting that witness during examination makes deposition preparation even more important.

Instructions and advice to deponents has remained about the same for a long time. The inability of witnesses to follow that advice is understandable. Most witnesses are nervous, uncertain and in a new and strange environment.

In short form, most witnesses are generally counseled as follows:

1. Understand opposing counsel is not your friend.

Many lawyers feign folksy charm, naïve ignorance or just plain friendliness in an effort to encourage a relaxed chattiness from the witness. The witness must remember that this new friend is probably charging hundreds of dollars an hour to weaken or destroy their case.

This does not mean that the witness should be surly, uncivil, or impolite. In calculating the settlement value of any case, the appearance, credibility and likability of any witness is often significant.

2. Understand the question before answering.

Multi-part questions loaded with unfounded assumptions can only lead to unfair and incorrect conclusions. With counsel's limited rights to interrupt and risks of claims of coaching it is important that the witness be vigilant about such efforts.

Similarly, vague and ambiguous questions followed by clear answers often serve to produce a basis for otherwise unjustified arguments. Witnesses need to require that such questions be clarified.

3. When possible, limit answers to "yes," "no," "I don't know" and "I don't remember."

When a question calls for a narrative answer, be as brief as possible. Most of us are rather undisciplined and casual with our words in most conversation. Misunderstandings are usually cured quickly and easily in the give-and- take of the exchange. Unlike most of life, there is a stenographer at a deposition. The casualness of oral conversation is quickly converted into a serious writing subject to a solemn oath. Given our more usual habits, brevity will produce less harm.

Of course, there is much more. The warnings above may serve to signal the importance of this preparation. Suffice it to say that a deposition can lead to admissions so serious that they provide the basis for a successful motion for summary judgment. The mere threat of such a motion, even before it is filed, may lead to a favorable settlement.

When a deposition doesn't achieve such a useful result, it may contain enough to make trial a less productive endeavor. Again, it may lead to a more favorable settlement.

Given the risks, a well-prepared witness is an absolute imperative.

* Michael Callahan licensed to practice in New Hampshire.


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