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Emphasize “Defense” When Preparing the Company Witnessby David W. Olson 4/23/2004 Frequently, in products liability lawsuit, a plaintiff will notice the deposition of a defendant manufacturer’s “company witness”—the corporate representative designated under Fed. R. Civ. P. 30(b)(6). Some manufacturers enlist the assistance of their “go-to” senior engineer to testify concerning the product line’s impeccable design and manufacturing history and lack of prior complaints. Other manufacturing clients, perhaps not as fortunate to have a “litigation-tested” engineer in-house, produce the product or marketing manager as the person most knowledgeable to testify concerning the product at issue. In the latter case, defense counsel is sometimes confronted with the task of preparing a loquacious company witness who believes that he or she has been called upon to “win the case” for the company. Unfortunately (or fortunately in some cases), the testimony of the company witness does not, in most instances, win or lose the lawsuit, and having an overly informative 30(b)(6) witness can lead to more problems than it solves. Therefore, it is important that such witnesses realize at the outset that any attempts to “explain it all away” will likely do more harm than good for the company. In order to get this point across to your company witness without getting so tied to techniques that the testimony will sound canned or unpersuasive, it can be helpful to have the witness focus on (and rehearse) a simple phrase that many NCAA athletes are hearing a lot during this time of year: play defense. In other words, make sure the witness understands that the opposing lawyer is the only one that can score points during the deposition, and it is the witness’s job to keep the points of the opposing lawyer to a minimum by truthfully answering only the question asked in the most concise manner possible. Once in this defensive frame of mind, the witness will become more reflective, as opposed to reactive, when the opposing lawyer asks a question. An added benefit to “playing defense” is that the witness will hesitate before offering a long-winded response that fails to answer the question while giving the opposing lawyer more fodder for cross-examination. In short, when the company witness is thinking “defense,” the witness is reflecting, and when the witness is reflecting, the witness is not talking—perhaps the best defense of all! Here are some suggestions to get your company witness thinking defensively before giving deposition testimony: Beware. Get the witness to accept the notion that the opposing lawyer is the “enemy” who is not merely trying to get information. Rather, the witness must realize that the opposing lawyer has ulterior motives and everything the witness says will be used by that lawyer to get the witness to say something that will support the plaintiff’s case. A defense-driven preparation should also caution the witness to be especially aware of the pleasant lawyer with the calm demeanor who will try to lull the witness into opening up and communicating more than necessary (e.g., privileged matters). Do not volunteer. This may be the easiest rule to teach, but often the hardest for the witness to put into practice. A good rule of thumb is to tell the witness that when she hears herself say the word “because” a red flag should go up in her mind that she may be volunteering information. The famous example is the lawyer asking the witness “Do you have the time?” to which the witness answers “Yes” or “No.” The witness should not give the actual time until the lawyer follows up with the next question “What is the time?” Do not manufacture. Even though the witness may work for a manufacturer, the witness should never “manufacture” information that could build the plaintiff’s case. For example, when opposing counsel asks the witness about product design considerations thirty years ago, instead of guessing or assuming what was considered at that time, the witness should feel comfortable responding “I don’t know” or “I don’t recall.” Further, when opposing counsel asks the witness whether she has testified about everything that she knows on a certain topic, there is nothing wrong with the witness responding “That’s all I recall right now.” Although the witness may know something else concerning a specific topic, it is not her job to recall every piece of information she may have once known about in response to such an all-encompassing inquiry—again, the witness should simply play good defenses making it difficult for opposing counsel to score points in the deposition. Listen to the question. Get the witness to understand the difference between active and passive listening. A witness who practices passive listening hears only a few words of the question and often does not answer the question asked. A witness who practices active listening pays attention to each word from opposing counsel, especially the first word, and answers only the question posed. For example, if opposing counsel asks “when,” the witness who actively listens will not respond to “why.” Pay attention to objections: Impress the importance of listening to your objections to opposing counsel’s questions. An objection should be a cue to the witness that there is something wrong with the question and the witness should provide a cautioned response. When the seasoned witness hears defense counsel object, he will often respond to opposing counsel’s question with “I don’t quite understand the question. Could you please rephrase it?” Do not bring paper: Make sure the witness is warned not to bring his or her file to the deposition, unless it was requested in a request for production issued with the notice of deposition. Obviously, this rule is designed to prevent privileged material from getting into the hands of opposing counsel. The company witness is only expected to testify based on personal knowledge or knowledge gained through conversations with others within the company possessing that knowledge. Unless a request for production is served with the deposition notice, that knowledge need only be conveyed to the best of the witness’s recollection, and need not be supported by documentary evidence at the deposition. Practice: After the witness gains a comfortable understanding of the key issues in the case, it is advisable to ask the witness about any concerns she may have, or whether the witness anticipates any difficulty answering questions about certain topics. Once the witness expresses specific concerns, have the witness answer specific questions by playing the role of opposing counsel and asking the tough questions that are likely to be encountered. Then, critique the witness by providing positive, constructive criticism so that the witness gains confidence for the deposition (e.g., “I liked how you responded to the first part of that line of questioning concerning component parts, but I think you can probably shorten your testimony concerning...”). These practice tips are certainly not meant to suggest that your company witness should be obstructive during the deposition or that she refuse to provide truthful, complete answers to proper questions. Similarly, these suggestions may not work in every case. Rather, this list, far from being exhaustive, is designed to get you thinking about ways to get your company witness to say more by saying less. Her employer, your client, will thank you in the long run. The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct. The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct. |
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