Preparing Clients & Lay Witnesses for Deposition

A step-by-step guide to preparing lay witnesses for their deposition, with video and a re-usable Keynote presentation.

One of the most common tasks for a litigator is to prepare clients and lay witnesses for upcoming depositions. This Procedure contains a checklist, a re-usable Keynote presentation, and a video that can be viewed by the witness and used by you as a template to guide the use of the Keynote presentation for in-office preparation of the witness.

WARNING! This Procedure is not intended for use with expert witnesses or Rule 30(b)(6) corporate designees. For Rule 30(b)(6) witnesses, refer instead to the Procedure: Rule 30(b)(6) Depositions.

Preparing a Deponent

  1. Notify the deponent of the upcoming deposition as early as possible and if appropriate (as when the witness is a client or a friendly witness not otherwise represented by their own counsel) arrange for a time for the witness to undergo preparation in the office or by video conference.
  2. Ensure that the witness knows when and where the preparation session will take place. (NOTE: it is better to prepare the witness close in time to the actual deposition so that the witness will remember what he or she learns in the preparation process).
  3. Make a carefully thought-out written list of the key issues in the case about which the witness will likely be deposed.
  4. Create a sub-folder in Working Copies containing the copies of the exhibits likely to be used by opposing counsel in the deposition of the particular witness (including but not limited to exhibits previously used in prior depositions, disclosed documents, pleadings and discovery responses for client witnesses, photographs and statements given by the witness and others).
  5. Watch the 31 minute Training Video entitled “Preparing For Your Deposition.” (Click the link to watch.)
  6. Send the witness a link to the training video and ask that person to watch the video. The link to the video is: https://www.youtube.com/embed/UhFJCe4YG_c. Copy and paste that link as a URL into your email to the witness, but change the text of that link to “Video: Preparing for Your Deposition.” (Note: if you send the video to a witness who is not our client, opposing counsel may see that video, but it was designed in a manner to prevent that from damaging us or the witness.)
  7. Download the Firm’s standardized Keynote presentation used for preparing witnesses for deposition entitled “Preparing For Your Deposition” to your desktop. The link to download the presentation is here: Download Presentation.
  8. Modify the Keynote presentation you have downloaded to include topics and documents specific to that person’s deposition (from steps 3 and 4 above). (Note: you will find that the slides with red boxes are the most likely to need modification to customize the presentation for that witness.) Keep in mind that if the witness is not a client, even though the witness will not keep a copy of your modified presentation, your communications with them are not privileged, so be sure not to modify the presentation in a way that will look bad if the modified version is somehow later seen by the court or a jury.
  9. Rename the modified presentation so it is clear from the title which specific witness for whom it was made. Do not re-use it for another witness without copying it and re-naming it.
  10. Be sure to store your modified versions in Working Documents in appropriately titled subfolders so that we have a permanent record of what you showed each witness.
  11. Meet with the witness and prepare him or her using the modified Keynote presentation. If the preparation is by video conference, make sure you know in advance how to share your screen so the witness can see your modified version of the Keynote presentation as you walk the witness through it online.
WARNING! If you prepare a non-client witness by video, note that the witness may be recording the video conference, so be sure not to say anything that could later be used as a basis to impeach you, your client or raise an ethical violation. Emphasize that the witness's first job is to tell the truth.