Requiem for conventional witness preparation

Kenneth R. Berman
BridgeTower Media Newswires

Two recent court decisions - one from each coast - show why conventional witness preparation needs a warning label: Use at your own risk.

The first one shows how conventional approaches to witness preparation can lead to huge shareholder losses.

The second shows how failing to prepare witnesses more intelligently can be catastrophic for both client and lawyer.

The ‘Qualcomm’ case

The Federal Trade Commission sued Qualcomm in federal court in San Jose, California, claiming antitrust violations in Qualcomm’s patent licensing practices. Federal Trade Commission v. Qualcomm, Inc., 2019 WL 2206013 (N.D. Cal. May 21, 2019).

Qualcomm lost big. U.S. District Court Judge Lucy Koh issued a battery of injunctions against Qualcomm, causing Qualcomm’s stock to plummet 11 percent, a loss of about $10 billion in shareholder value.

Koh began her analysis by explaining why “the Court largely discounts Qualcomm’s trial testimony prepared specifically for this litigation.” She noted how a former Qualcomm president couldn’t recall in deposition anything about Qualcomm’s communication plan to defend against antitrust claims. But at trial he remembered precisely why Qualcomm had such a plan.

“It is odd that [he] had better recall during the January 2019 trial than nearly a year earlier at his March 2018 deposition,” she wrote. “The Court does not find [his] prepared for trial testimony credible.”

Koh then called out two other senior Qualcomm officers for testifying that Qualcomm would never threaten to terminate a customer’s chip supply to get it to accept Qualcomm’s license terms. Unfortunately, the testimony didn’t square with an email those officers received from a colleague showing that Qualcomm had threatened to do just that.

Koh also discredited another senior Qualcomm officer who testified that he had never been told of Qualcomm threatening to cut off chip supply to get leverage in a license dispute. But the witness’s handwritten notes showed otherwise. He not only was told of chip cut-offs but had approved them.

Koh also criticized how other Qualcomm executives gave “long, fast, and practiced narratives on direct examination,” but on cross were “very reluctant and slow to answer, and at times cagey.”

Although we don’t know how these witnesses were prepared, these testimonial blunders are the type of mistakes commonly made by witnesses prepared in conventional ways.

Take claiming a lack of memory in deposition when there really was a memory. In conventional witness preparation, lawyers counsel that, because no one has a perfect memory, it’s OK to say “I don’t recall.” This advice generally accompanies instructions that witnesses should keep their answers short and not volunteer information to opposing counsel, and that weak memories in deposition can always be refreshed later.

With these cues, witnesses assume that, if their memory is hazy, “I don’t recall” is fine because they can refresh their memory if necessary for trial. Wouldn’t the witness be better off if, during preparation, the lawyer advised:

“Anything said in deposition can be used at trial, so answer as you would at trial. If the judge would expect you to remember something, ‘I don’t recall’ will sound like you’re feigning a poor memory to hide a bad fact, just like what we see on TV and in the movies. So before the deposition, do whatever you have to do to refresh your memory so that, if possible, you can avoid having to say ‘I don’t recall.’ And if you really don't recall something, cushion it with some regret and a bit of an apology, rather than a blunt ‘I don’t recall.’ Otherwise, they’ll think you’re hiding something.”

How do witnesses end up denying bad facts that so easily can be proven, as these senior Qualcomm officers did? This can happen when witnesses know the general case theme, but the preparation doesn’t go deeply into the substance. Many busy executives don’t want to invest time in witness preparation. So they’ll echo the party line, unaware of the devilish details. Skimping on witness preparation unfortunately can be very costly.

And if a document conflicts with the client’s position, the lawyer and client better talk about it during the preparation to see if the client can explain it. If the client has an explanation, then it’s best if the client gives it when first asked about the document during testimony. Otherwise, under the conventional instruction not to volunteer information and not to explain an answer, the court will imagine its own explanation, usually a bad one for the client.

Waiting until redirect to correct misimpressions is often too late. The stain will have begun to set, impressions will have formed, and corrective work at that point will look contrived.

Why do witnesses give polished testimony to their own lawyers but evasive or combative answers to opposing counsel? This comes from conventional preparation when lawyers advise their clients that opposing attorneys want to do as much damage to the client as possible, so the less said to them the better.

The advice is meant to keep clients on their toes, but the effect is to make them cagey, unlikable and unworthy of being believed, as Koh’s decision shows.

Qualcomm needed strong, believable, likeable witnesses to get Qualcomm’s story out and explain the documents in a way that would have strengthened Qualcomm’s defenses.

Instead, the judge gave no weight to anything Qualcomm’s witnesses said that would have helped the case. The judge effectively put those witnesses in the penalty box and let the FTC take as many undefended shots on goal as the remaining evidence would allow.

The result: a major trial defeat for Qualcomm and billions in shareholder losses.

The ‘Nederlander Theatres’ case

A dispute in a theater company set the stage for In Re: Shorenstein Hays-Nederlander Theatres LLC Appeals, 2019 WL 2531162 (Del. June 20, 2019).

The case arose from an effort by Carole Shorenstein Hays, an indirect part owner of Shorenstein Hays-Nederlander Theatres LLC, to form a competing theater company. Hays won below but lost on appeal. The judge had declined to enjoin Hays from running two popular shows in San Francisco. But the Delaware Supreme Court reversed, holding that Hays’ running those shows would violate Shorenstein Hays-Nederlander’s operating agreement.

After adjudicating the merits, the court added a remarkable coda, republishing excerpts from Hays’ deposition and excoriat-ing Hays for her evasiveness, her “ridiculous and problematic responses,” her “colossal waste of time and resources,” and her “abusive deposition misconduct.”

Her deposition wasn’t even at issue on appeal. Yet it caught the court’s attention because it was so inappropriate, leaving one to wonder whether the court’s resulting disdain for Hays might have subconsciously influenced the appeal's outcome.

The court cited many examples of Hays’ terrible testimony. Here's a small slice:

Q. How much time did you spend with your counsel to prepare for the deposition?

A. Sufficient.

Q. How much is sufficient?

A. The appropriate amount needed.

Q. Can you give me an estimate of the amount of time?

A. It was completely enjoyable.

Q. How many times did you meet with your counsel to prepare for the deposition?

A. Preparation is always a good thing.

Q. That wasn’t my question. How many times did you meet with your counsel to prepare for the deposition?

A. I met with them - I’m not understanding the question.

Q. You told me you met with your counsel to prepare for the deposition.

A. Sure.

Q. How many times?

A. Well, see, I think of time as a continuum. So I think I met with them from the beginning to the end. And the beginning was the start, and then there was the rehearsal, and then there was the preview, and now it’s what I think of as the performance. So, in my mind, I’m answering what you’re asking. If you could be more specific. Do you want hours?

Q. Yes.

A. Oh, I don’t wear a watch. So I know the sun coming up in the morning and the moon coming up at night.

The court also chastised Hays’ lawyers: “Counsel defending the deposition have an obligation to prevent their deponent from impeding or frustrating a fair examination. ... An attorney representing a client who engages in such behavior during the course of a deposition cannot simply be a spectator and do nothing. ... Lawyers have an obligation to ensure that their clients do not undermine the integrity of the deposition proceedings by engaging in bad faith litigation tactics; they cannot simply sit and passively observe as their client per”

The most interesting part of the court’s critique was the opinion's last sentence: “Given the restrictions on conferring with a client during deposition proceedings, these points obviously should be addressed beforehand in the deposition preparation.”

But what gets delivered in conventional preparation hardly suffices:

“When the other lawyer is asking the questions, don’t volunteer information; don’t explain your answers; if any part of the question seems confusing or unclear, just say you don’t understand it; if you get into trouble, the five safe answers are yes, no, I don’t know, I don’t remember, and I don’t understand the question; the lawyer on the other side isn’t your friend so the less you say the better.”

The whole object of conventional witness preparation is to train the client to say as little as possible, and the subliminal message is to find ways to avoid the opposing lawyer’s questions. That’s not addressing the problem; it’s producing it.

We don’t know how Hays was prepared, but witnesses who give answers like the ones Hays gave are typically prepared in the conventional way. Hays is an extreme example, but the deposition landscape is littered with witnesses who evade questions, under-answer them, give cute replies, and resist admitting anything (even non-controversial or undisputed facts), not realizing that witnesses who answer that way will alienate the fact finder, preempt their own stories, and corrupt their own credibility.

Conclusion

The goal of effective witness preparation isn’t to teach clients how to shut down; it’s to empower them to be great witnesses, to get their stories out, to answer questions as truthfully, responsively and completely as they can without leaving a misleading impression, to give the best answer the first time the question is asked, and to answer like a grownup, in ways that build trust and credibility with the fact finder and support the theme of the case.

This can be done, but it requires a paradigm shift to a more enlightened way of preparing witnesses.

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Kenneth R. Berman is the author of the American Bar Association book "Reinventing Witness Preparation: Unlocking the Secrets to Testimonial Success" (2018). He is a partner and co-chairs the business litigation practice group at Nutter in Boston.