Serious Litigators for Serious Injuries

ALABAMA TRIAL LAWYERS ASSOCIATION CONINUING LEGAL EDUCATION

OBTAINING JUSTICE: TURNING WEAKNESSES INTO STRENGTHS TODAY AND BEYOND

November 5, 2004

TRIAL AND DEPOSITION PREPARATION: YOUR CLIENT'S WITNESSES AND EXPERTS

Scherffius, Ballard, Still & Feagle, LLP
Atlanta office:
1201 Peachtree Street, NE
Suite 1018
Atlanta, GA 30361
404-496-5628

TABLE OF CONTENTS

INTRODUCTION

1. PRE-MEETING PREPARATION
2. 1. Time
   2. Leave Logistics to Others
   3. Prepare Yourself
   4. Prepare a Witness Folder
3. THE MEETING
   1. Walk in the Witnesses Shoes
   2. Listen to the Witness
   3. Get Down to Specifics
   4. Know your Limits
   5. You are an Advocate but not a Coach
   6. Tell the Witness the Basics of being a "Good" Witness
4. THE OUT-OF-TOWN GUY WITH A BRIEFCASE-YOUR EXPERT
5. CONCLUSION

I.INTRODUCTION

You have met the client, analyzed the facts, done the legal research, "statementized" or interviewed the witnesses, hired the experts, filed the lawsuit, sent and received discovery, and now that sublime moment of true commitment arrives-"they" want to depose your witnesses. "They" want to invoke the rule of law to place witnesses under oath and memorialize testimony forever, in perpetuity, not to be forgotten or changed without a severe price to be paid. Pretty heavy, huh? Well, yes, it is, and it falls upon the lawyer to prepare those witnesses for what is about to happen. If you are a new lawyer, nothing much happened in law school to prepare you for this task; if you are an old hand, you have to "get up" for the job for the umpteenth time-it's too important to become routine. For any lawyer, the immediacy of checklists and reminders is not only helpful but also essential, so let's build one for preparing your client's witnesses for deposition or trial testimony.

II.PRE-MEETING PREPARATION

A. TIME: Make it/create it, whatever it will take. Time is a trial lawyer's most valuable asset because it is the essential ingredient to every aspect of case preparation and there is never enough of it. Successful lawyers manage time by identifying the critical paths in the trial preparation algorithm and allotting the necessary time to the flashing red lights. Getting witnesses ready for deposition or trial testimony definitely equals flashing red lights.

B. LEAVE LOGISTICS TO OTHERS: To the extent possible (and sometimes it is impossible), stay away from logistics (date, place, time, notice, court reporters, travel arrangements, cancellations and resets, etc.). Logistics are time eaters-let better qualified employees handle these matters.

C. PREPARE YOURSELF: Strangely enough, in reviewing materials for this paper, seldom did I see any practice pointer emphasizing this bullet yet it is a vital but often overlooked element of preparation. Why is self-preparation sometimes ignored or done unsatisfactorily? See number one (1) above-"I don't have time..." "Prepare yourself" means reviewing the file-all of it. In complex cases (which encompasses practically all cases anymore), lawyers may divide tasks or depositions, and no one lawyer has done everything. A "briefing" from your partner or associate is great, but it can never provide the level of preparation that a file review will.

D. PREPARE A WITNESS FOLDER: Prepare a separate folder or notebook for each witness to avoid a disorganized approach. Include essential information obtained through discovery, interview notes, the witness' statement, contact data, anticipated exhibits, correspondence and email exchanges, a copy of a notice or subpoena if applicable, and an outline/memo of expected lines of questioning. Make extra copies of what you want to share with the witness, and prepare a "reminder" memo for the witness of logistical information-where and when with directions and contact numbers.

III.THE MEETING

A. WALK IN THE WITNESS' SHOES: We are trial lawyers-we know everything! Witnesses, including many experts, don't know anything about testifying other than what they may have seen on television or in a movie (great sources!). Think about this: what if you were told that you HAD to spend a day doing what the witness does for a living-say something like flying an airplane or treating people at wreck scenes. Wouldn't you want to know a little bit about the "mechanics" of what was about to happen? My point is to try to empathize with the witness, try to anticipate questions, and try to provide the answers. A good starting point--what is a deposition or what is a trial? Not the Belli multi-volume versions, but the five minute quick peaks. Explain the process, the participants and roles (including all court personnel), the making of a record (including video), the potential uses of a deposition, your role (very important-you are not the witness' lawyer in most cases), objections, rulings, and the right of signature, errata sheets, and the logistics-where and when. Assuming that the deposition or trial appearance is not to occur immediately following the meeting, repeat this last point several times during the discussion, provide the logistics memo that you have pre-prepared, and have office calendar reminders to follow up.

Except in a consultant situation with one who subsequently becomes an expert, rarely does a witness enjoy the privilege of confidentiality with a lawyer, and rarely are matters disclosed by a witness to the lawyer or vice-versa subject to work product doctrine and consequent privilege against disclosure. Witnesses (fact or expert) need to understand this point.

Witness compensation will almost invariably be a subject of discussion. Permissible pay and expenses are is set forth in Rule 3.4 of the Georgia Rules of Professional Conduct, and "reasonable" is the key word for both experts and fact witnesses.

B. LISTEN TO THE WITNESS: Trial lawyers love to talk-it is more difficult to listen. Remember, it is okay to listen! It is okay to make small talk about things that are irrelevant to the case but interesting to the witness-just maybe everyone will be a bit more at ease. Let he or she talk and you listen-get the conversation moving with questions and interrupt as may be necessary, but the first time around the track, mostly listen. Let the witness review any prior statement and correct or edit as the witness deems appropriate. Make notes if necessary but explain why you are doing so.

C. GET DOWN TO SPECIFICS: ladies and gentlemen, ask the tough questions at the pre-testimony meetings. Ask the hard questions. Ask the hurtful questions. You have to know the answers. You cannot prepare for a deposition or trial if you do not know beforehand the answer to as many of the "bad" questions that you can dream up. It is essential to know what a witness may say to the "killer" question so you can, for instance, be certain that the witness has the correct information upon which the answer is based. Can a photograph best illustrate the truth of a situation? Will another person's testimony resolve an ambiguity or misunderstanding?

In closing the meeting, always extend the witness an offer to ask questions. There are lots of reasons to do so, including professionalism and courtesy. However, the best reason to solicit questions relates to the simple fact that no matter how good you are, you cannot anticipate everything that may be bothering a witness about the pending testimony, so let the witness tell you.

D. KNOW YOUR LIMITS: There are "bright lines" that cannot be crossed in witness preparation, legally and ethically. Frankly, most such constraints are self-evident-certain conduct does not pass either the "smell" test or the "feel right" exam. But just in case you would like to review the law and ethical considerations applicable to witness preparation issues, let your fingers do the walking to the back of your State Bar Directory to the "Georgia Rules of Professional Conduct." Many Rules as well as the Preamble address issues relating to witness preparation, but one may wish to be particularly cognizant of Rule 3.4 (Fairness to Opposing Party and Counsel), Rule 4.1 (Truthfulness in Statements to Others), Rule 4.2 (Communication With Person Represented by Counsel), Rule 4.3 (Dealing With Unrepresented Person), and Rule 4.4 (Respect For Rights of Third Persons), and the Comments to each cited Rule.

E. YOU ARE AN ADVOCATE BUT NOT A COACH: Coaching witnesses as to what to say, that is, providing answers to questions is never acceptable. Listening to the answer to a question, and then offering guidance as to the better means of expression, is always acceptable. There is nothing wrong with rehearsal through review, even to the extent of mock depositions or trials (including going to the courtroom). A lawyer who fails to ask a witness expected questions and to review the answers is not preparing the witness.

F. TELL THE WITNESS THE BASICS OF BEING A "GOOD" WITNESS: Most people want to be a "good" (effective) witness when called upon to testify. There are few "rules" and fewer "nevers and always" but experience allows us to construct a fairly simple and useful 12 Steps:

1. Tell the truth-always. Telling the truth may mean having to say "I don't know" or "I do not recall."
2. Do not guess.
3. Understand the question before answering. Ask for a rephrasing or a repeating until the question is clear.
4. Be yourself-you cannot be someone else!
5. Dress appropriately. Videotape depositions and courtrooms are not places for costumes or sloppy Saturday outfits. The general rule is no less than casual church clothes for lay witnesses and suits and ties for experts.
6. Answer each question completely.
7. Do not volunteer information and do not anticipate questions.
8. Be polite and courteous. Do not "rise to the bait" by becoming argumentative or disrespectful.
9. Request breaks as necessary.
10. Review anything put before you prior to answering questions relating to same.
11. Ask to see something that may assist you-a photo, your statement, a diagram, another deposition, etc.
12. Tell the truth.

IV. THE OUT-OF-TOWN GUY WITH A BRIEFCASE-YOUR EXPERT

No matter how "practiced" your expert may be, all of the above still apply. applies. However, a few additional considerations come to mind.

1. In federal and many state courts, experts must understand the exact foundation requirements for stating an opinion. Review Daubert and progeny with the expert to be certain that he or she can and will support opinions with the necessary research, facts, and analysis.
2. ALWAYS review everything in the expert's file and office relating to your case. Be certain materials that are subject to privileges you may wish to assert are removed from the file. Double check that everything that should be produced to opposing counsel has been produced and that a privilege log has been prepared and served. Ascertain that everything that the expert should have received has in fact been received and reviewed. Practice Pointer: a file review can be a very time-consuming process so prepare accordingly. You may want to allow an extra day or half-day for this purpose alone.
3. Try to make your expert create the time necessary for a productive preparation conference. You are paying the bill and you need to reserve the time that you will need-one hour, half-day, evening before-whatever it takes. As we know, medical experts are notorious for shortcutting your preparation session with them-emergency surgery, patient overload, absent office manager, you name it. Additionally, your flight will never be on time and your rental car will never be reserved. Plan accordingly.
4. Have the expert review the factual situation (or hypothetical) and verbally express all opinions. You need to hear these answers one more time, shortly before the testimony is to be offered, no matter how many times you have heard the opinions previously. Listen carefully for concerns or reservations that the expert may directly or indirectly offer-last second surprises are no fun but a heck of a lot better than deposition daggers. Tune your ear carefully to the legal essentials station. For instance, is the expert saying that the malpractice did or did not, within a reasonable degree of medical certainty, make a difference? Did the pilot's failure to adhere to FAR 91.17 (a)(1) relate materially to the cause of the crash?
5. Do not assume that your expert necessarily knows much more about how to give a deposition or offer trial testimony than a lay witness-review the basics.

V. CONCLUSION

Witness preparation, like all trial advocacy, is an art and not a science. What works for some lawyers does not work for all, but adherence to a few basic guidelines will increase the chances of a successful witness deposition or trial appearance. One might consider using commercially available videotapes/dvds for witness preparation where a witness may be amenable, and the advocate should maintain and use an evolving checklist as a memory check. The offering of sworn testimony is serious business indeed; the preparing of the witness deserves the trial lawyer's most careful attention to detail.

BIBLIOGRAPHY

Nasim Ahmad and John Zavitsanos, Preparing your Witness for Deposition and Trial

(University of Houston Law Foundation Continuing Legal Education: Litigation and Trial Tactics 2002) http://www.azalaw.com/publications/
PreparingWitnessforTrial.pdf.

Gillian Drake, Taking Witness Preparation to the Next Step: Developing your Client into an Excellent Witness, in Trial Briefs (North Carolina Academy of Trial Lawyers, 1998).

Fed. R. Evid. 701-706.

Fed. R. Civ. P. 30.

Georgia Rules of Professional Conduct 3.4.

Sylvia Hsieh, Backstage: Lawyers Prepare Witnesses for Trial in Stages of Reality: Theater in the Courtroom (Georgia Association of Trial Lawyers Seminar, August 2004).

Kenneth J. Melili, Witness Preparation, 61 Am. Jur. Trials 269 (2004).

Thomas A. Mauet, Pretrial 271-273 (5^th ed. 2002).

Thomas A. Mauet, Trial Techniques 516-519 (6^th ed. 2002).

Henry G. Miller, Esq. On Trial: Lessons from a Lifetime in the Courtroom (2001).

Model Rules of Professional Conduct Rule 3.4.

O.C.G.A. § 9-11-30.

O.C.G.A. § 24-9-67.

Amy Singer, Practice Makes Perfect: The Psychology of Witness Preparation, in Trial 70 (September 1996).

Gerald B. Taylor, Jr. Your Client's Deposition: Preparation Breeds Success, in The New Lawyer Forum: Association of Trial Lawyers of America.

Witness Preparation, University of Houston Law Center (visited Oct. 1, 2004) http://www.law.uh.edu/litigation/deposition
/WITNESSPREPARATION.pdf