Shook Partner Matt Keenan has revisited the idea of the "gotcha" question in depositions, a subject he originally wrote about for Law360, in an article for DRI's RX For the Defense, the newsletter of the organization's Drug and Medical Device Committee. Keenan provides advice for defense litigators to protect their clients from questions designed to cast them in a negative light for failing to know the answer, such as a question about a company's public statement or Employee Code of Conduct. "Someday long ago, the totality of deposition preparation consisted of telling the witness four words: 'just tell the truth,'" Keenan writes. "If you long for those days, you have a lot of company. Today, the hazards of witness preparation are much more complicated."
Keenan worked with jury consultant Beth Devlin to provide practical tips. "“The witness (and the trial team, for that matter) need to not be afraid to show empathy toward the plaintiffs," Devlin told Keenan. "For that reason, you should encourage your witness to show compassion toward the plaintiff. I think what happens all too often is that the well-intentioned trial team, in the full throes of ‘advocacy’ mode, tend to dehumanize the plaintiff and forget that something unfortunate happened to that individual and/or they are suffering—even if it wasn’t the defendant’s fault.”
"At its core, the deposition preparation process requires the witness to understand and appreciate their role in the entire defense of the case," Keenan explains. "This includes visual cues of how depositions are played and used to both help and hurt the defense."