We don’t take many depositions, and those that we take tend to be short. We don’t need to look under every stone. We just need to know where the boulders are. Excessive questioning of witnesses, particularly experts, serves only to educate them.
We normally videotape depositions of fact witnesses. This minimizes excessive talking by opposing counsel, and allows us to show the other side’s key witnesses during jury simulations. And if the other side videotapes our witnesses, we make sure to put on the record 15 to 20 minutes of trial-ready testimony to counter whatever use the other side wishes to make of the video.
We believe there is no such thing as a bad witness-only one who has been badly prepared. We don’t prepare our witnesses to testify by sitting them in a room alone with the thousands of documents on which they may have been copied over the years and ask them to review them. We prepare them for the toughest questions they will face, whether that is two, twelve, twenty, or two hundred. A good lawyer will know better than the other side what the hardest questions are, and will know the toughest documents the witness will face-typically ones the witness directly authored or received.