Preparing a Witness for Deposition

Corruption, Crime & Compliance is happy to welcome Prof. Rob Steinbach as a guest author for a post on preparing a witness for deposition.

I recall once, as a junior attorney, sitting in a conference room with a partner who was preparing a witness for a deposition in a complex securities matter.  The partner told the would-be witness that we would be treating the preparatory session as a mock deposition. In preparation, the partner had associates gather all the documents related to the witness.  During the session, the partner then proceeded to go through the documents with the witness one by one.  The partner showed the witness each and every document and asked him whether he had seen the document before.  When the witness aptly asked:  “well, now that you showed me the document, don’t I have to say yes, when asked the same question in the real deposition?”.  The partner responded “no.”

The partner, of course, was wrong. 

This interaction, however, is not all too uncommon.  And it reflects a lack of appreciation of the tools for proper deposition preparation.  Generally, attorneys should adhere to the following three basic rules regarding documents in preparing a witness for deposition:

1.  Never show a witness a document that he hasn’t seen.  You don’t want to give a witness information to transfer to the other side that he previously did not have.  This is not debate training.  If the witness needs to be edified on an issue, this can and should happen without the document that he has not previously seen.

2.  If you don’t know whether a witness has seen a document, first assume that he hasn’t.  Then ask about the document without showing it to the witness.  As the sayings go, you cannot unscramble the egg or un-ring the bell.  Equally, you cannot un-show the witness a document. 

3.  You may generally assume that a witness has seen a document that he has signed.  Don’t treat the above two rules so rigorously as to be absurd.  You should have a good sense as to most documents, in fact, whether your witness has seen it or not.  You should only have a relative few documents about which you will need to explore their provenance. 

 Lawyers too often mistake deposition testimony for direct testimony, and, as a consequence, they seek to have their witnesses do far too much.  Deposition preparation should be about ensuring that a witness is truthful but not solicitous.  The goal is to have the witness present testimony that will be wholly consistent with his eventual direct testimony at trial, but not nearly as extensive.  Remember, an attorney almost never takes the deposition of his own witness.  Don’t forget the role of a deposition and for whose benefit it was noticed.

Robert Steinbuch is a Professor of Law at the University of Arkansas/Little Rock School of Law.  His courses include Evidence, Business Associations, and Professional Responsibility.  He previously worked in every branch of the federal government and in private practice.  He can be reached at [email protected].  Some of his articles can be found  at

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