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The Role Of Inside Counsel In Deposition Preparation

By James M. Beck and Mark Herrmann

We're still feasting from our notes of the ACI Drug and Device Conference in New York last month. This post combines our thoughts with the ideas of one of the speakers at the conference. (We're not sure if that person cares to be identified here, so we're not naming him or her -- but not all of the thoughts that follow are our own.)

Inside counsel are typically overseeing the defense of many cases. Outside counsel, in contrast, are retained to wallow in the facts of specific cases. This makes the sessions at which counsel prepare corporate witnesses for deposition a little funny -- because inside counsel often attend those sessions, but they're generally not intimately familiar with the witness-specific facts needed to prepare the witness. What is the proper role of inside counsel in witness preparation?

There are several.

First, inside counsel is the company itself. The presence of inside counsel assures the witness that preparation is necessary, and that the company encourages participation.

Second, inside counsel knows the company. If a preparation session reveals that some additional corporate employee should be interviewed, or some fact should be scrubbed, inside counsel may be best able to identify the people with knowledge or to follow up to learn the needed details.

Depending on the sophistication of the witness, however, inside counsel may be able to play a broader role. Some witnesses understand the litigation process -- they've been deposed many times before, have testified at trial, and would probably pass the Bar exam if they ever bothered to sit for it.

Other witnesses are much less sophisticated about the litigation process, and inside counsel can help bring these witnesses up to speed before fact-specific deposition preparation begins. Inside counsel can sit down with a witness (perhaps even before outside counsel arrives) and explain the nature of giving deposition testimony, rather than trial testimony; the difference between civil and criminal proceedings; the identity of the defendants in the litigation and how that affects the possible personal liability of the witness; the particular piece of the puzzle that the witness will be asked about, and why the witness isn't supposed to know every possible relevant fact; why the company values participation as a witness in litigation; and the like.

Preparing the witness on these topics calms the witness and helps inside counsel and the witness develop a rapport.

Inside counsel can also run interference for the witness within the company. Inside counsel can call the witness's supervisor and explain the witness's absence from his or her regular job duties.

Inside counsel may -- or may not -- also want to submit formal praise of a witness who devotes the necessary time and study to deposition preparation and thus performs well under pressure. On this point, we're not sure that we agree with the speaker at ACI. The speaker suggested that submitting a favorable review as part of the employee's formal job evaluation shows the witness that the deposition time was well spent, and shows the supervisor that the employee performed a necessary task well.

We're less sanguine about that. We can certainly imagine plaintiff's counsel unearthing this type of favorable job evaluation and putting it to unsavory use. We can hear the closing argument now: "This company is so evil that it actually views testifying for the company as part of an employee's job. Look at this evaluation: Mr. Smith 'prepared conscientiously for the deposition' and 'did a good job at the deposition itself'! You can feel the cover-up right here in the company's own documents! Do you suppose the company would have congratulated Mr. Smith if he had admitted that the company didn't test its product appropriately? You can see the lesson being taught here -- stand by the cover-up, and you'll get a raise."

Perhaps this post offers two lessons: First, inside counsel have several productive roles they can play in witness preparation; they should play those roles effectively. Second, as always, think hard about "hindsight bias" -- how every written word, no matter how well-intended, may some day be used against a corporate defendant.

Full post as published by Drug and Device Law on January 19, 2009 (boomark / email).