Senior Management's Deposition Is Much More than Discovery
A few weeks ago I listened to a continuing legal education presentation focused on taking depositions. One of the presenters said that one reason for taking a deposition was to cause pain in order to possibly leverage a settlement. Frankly, I was amazed. Who would ever admit that there was any purpose for a deposition outside of trying to discover information that could lead to the discovery of admissible evidence?
In any event, it raised the issue of the problems facing counsel when the deposition of a senior manager must go forward – and you strongly suspect that the primary purpose of the deposition is to make that manager look unprepared, unaware, unkind, unfeeling, unsophisticated and/or unintelligent; in other words, the purpose of the deposition is to leverage a settlement, or to make a jury intensely dislike your client.
This type of deposition is a different experience for the witness and defense counsel. Generally, the witness is used to being in charge and has very little time, or inclination, to prepare for the deposition experience. The witness may have had limited involvement with the underlying facts. Both inside and outside counsel may have perspectives that differ from the normal discovery deposition. Outside counsel may want to build a relationship with senior management to keep the client and broaden the relationship. Inside counsel may want to build a relationship with management and keep her job.
A good beginning for the witness’s preparation is a column by George Anders that was published in the Wall Street Journal on July 26, 2005. information and suggestions provided by non-lawyers and uninvolved lawyers who point out that a deposition is not a standard business situation and requires a different mind-set. Ideally, a copy of the column would be given to the witness before the preparation session. For testifying, Mr. Andros suggests that a senior manager be advised to keep four key guidelines in mind. 1.) Keep answers brief and tightly focused and avoid the temptation to expand beyond what is asked. 2.) Prepare diligently beforehand. 3.) Stay calm and truthful. 4.) Understand your strategy well enough so that you don’t undermine your value as a witness if the case goes to trial.
Obviously, given the concerns of in-house and outside counsel, teamwork is critical; however, both counsel should be prepared for surprises in how the other deals with the preparation and defense.
Because of the potential for a far ranging examination -- no matter how limited the time for preparation, or a court order limiting the scope of the exam -- a difficult, far ranging preparatory exam should be given so that the manager has some idea of what he may be up against in advance. At best, if the deposition goes well, the litigation team will be seen as well prepared and extremely capable. If it goes poorly, well, there are no guarantees in litigation. In any event, make sure someone discreetly suggests that the witness dress appropriately for the deposition.
