Should In-House Counsel Attend a Company Witness’s Deposition? Yup. — When You Need to Win

I’m often asked by in-house lawyers whether their presence at a company witness’s deposition is helpful. There are exceptions here and there, but my answer is usually, “Um. Yeah. Please don’t miss this.” As in-house counsel, your presence at depositions can be a big strategic advantage. Here are three important benefits your involvement brings to the table.

1. Providing Comfort and Reassurance to the Witness

Depositions can be nerve-wracking experiences for company witnesses, usually more so than they want to admit. Even when witnesses have strong relationships with outside counsel, the presence of a familiar and trusted face can make a world of difference.

• Ease Nervousness: Your presence can help put the witness at ease, providing support during the often-grueling process of a deposition.
• Boost Morale: Seeing you there can lift their spirits during tough moments, reminding them that they have the company’s full support.

2. Offering Constructive Feedback

Your familiarity with the witness allows you to provide targeted and effective feedback that outside counsel might miss or feel reluctant to deliver. During a deposition, a witness might:

• Adopt a Negative Tone: They may inadvertently take a hostile or defensive tone that could negatively impact the case.
• Make Detrimental Statements: Sometimes, witnesses may say things that unintentionally hurt the case.
• Forget Preparation Details: Despite thorough deposition preparation, nerves can cause witnesses to forget key points.

Being present allows you to address these issues promptly during breaks. Witnesses might also be more receptive to feedback from you, given your established rapport.

3. Monitoring and Supporting the Witness

Your close observation can be invaluable during a deposition. Here’s how:

• Recognize When Breaks are Needed: You might notice signs of fatigue or stress in the witness that outside counsel, focused intently on questioning, might overlook.
• Assess Witness Performance: Firsthand observation gives you insight into how well the witness is handling the deposition, allowing you to gauge the strengths and weaknesses of their testimony.
• Strategic Adjustments: Understanding the witness’s performance helps you and your legal team make better strategic decisions moving forward.

Practical Steps for Active Participation

• Prepare Thoroughly: Review the deposition preparation materials and ensure you understand the key points the witness needs to cover.
• Provide Calm and Steady Support: Be a steady, calming presence during the deposition, offering reassurance and support as needed.
• Offer Immediate Feedback: Use breaks to give constructive feedback, addressing any issues with tone, content, or behavior.
• Monitor Non-Verbal Cues: Pay attention to the witness’s body language and demeanor, intervening when necessary to suggest a break or offer encouragement.
• Communicate with Outside Counsel: Coordinate closely with outside counsel to ensure a unified approach to the deposition strategy.

Conclusion

Don’t underestimate your ability to contribute meaningfully at a company witness’s deposition. Your active participation can provide crucial support, improve witness performance, and offer valuable insights into the case. In-house counsel’s involvement might just make the difference between winning and losing a case. Your presence and proactive engagement during depositions can turn the tide in your favor, ensuring that your company’s interests are effectively represented and defended.

For more tips and insights on navigating high-stakes commercial disputes, stay tuned to my WYNTW videos and blog.

Chad Colton helps companies and business owners navigate high-stakes commercial litigation—when businesses, reputations and livelihoods are on the line. He often serves as parachute trial counsel, joining cases at the mid-point or on the eve of trial (sometimes literally) to develop a hard-hitting trial package. He has taken nearly 30 cases to trial across the country and served as lead counsel on some of the most high-profile commercial jury trials in the Pacific Northwest.