Preparing Yourself or Your Witness for a Deposition: A Practical Guide

The most common witness preparation in America takes place in the elevator on the way up to the deposition. The lawyer says, "Just tell the truth, keep your answers short, and don't volunteer anything." The witness nods. Forty minutes later she has agreed that she "probably" read an email she has never seen, because a pleasant person across the table asked if it was fair to say so, and she wanted to be fair.

Everything in that elevator speech is correct. It is also about as useful as telling someone learning to drive to stay between the lines. Testifying well is a learned skill that runs against the habits of ordinary conversation, and the only way to learn it is to practice with the actual facts and the actual documents. That takes time, some money, and a plan. This guide is the plan, and it is written for two readers: the lawyer running the preparation and the person who has to sit in the chair.

The short answer

• Start about four to six weeks out for an important witness, and no later than a week out for anyone. Preparation done the night before mostly produces anxiety.
• Settle who the client is first. Give any employee or former employee a plain explanation of whom the lawyer represents, in writing or in your notes, before hearing a single fact.
• Listen before you show. Take the witness's unaided account, then bring out the documents. Reversing that order can change the witness's memory and your own view of the case.
• Build the binder as if the other side will read it. Show only produced documents or ones you would produce. Keep your chronologies and outlines out of the witness's hands, and don't let notes come to the deposition.
• Run a real mock examination on video for any witness who matters. Someone other than the defending lawyer should ask the questions if possible. Most witnesses change more after watching themselves for ten minutes than after hours of advice.
• Give feedback on clarity, accuracy, and manner, and never on which facts to have. If you catch yourself suggesting a fact the witness did not supply, stop.
• Know the forum's rule on breaks before the deposition starts, and tell the witness what it means for her.
• Afterward, request review under Rule 30(e) on the record, calendar the 30 days, and use the errata sheet to fix errors, and not to rewrite.

For the legal limits behind all this (what is coaching, what is discoverable, and why), read the companion piece, Preparing a Witness for Deposition: What Is Proper, What Is Coaching, and What the Other Side Can Discover. This guide assumes you have it or will trust it.

Step 1: Read the paper and map the time you have

Who does this: the lawyer, or the witness if there is no lawyer. Timing: the day the notice or subpoena arrives.

A party or a party's officer, director, or managing agent is usually brought in by notice under Fed. R. Civ. P. 30(b)(1). Anyone else needs a subpoena under Fed. R. Civ. P. 45. Look for these items.

• Date, time, and place. A nonparty generally can't be commanded to travel more than 100 miles from where she lives, works, or regularly transacts business in person. Fed. R. Civ. P. 45(c)(1)(A).
• Method of recording. The notice must state it. Rule 30(b)(3)(A). If video is listed, plan accordingly. Video can be played to a jury, and any party can ask that deposition testimony offered in a jury trial, other than for impeachment, be presented in nonstenographic form if available. Rule 32(c).
• Remote or in person. Remote depositions take a stipulation or an order. Rule 30(b)(4).
• A document request. A notice to a party may come with a Rule 34 request, and a subpoena may command documents. Rule 30(b)(2). Those have their own deadlines and objections.
• Topics. If the notice is directed to an organization under Rule 30(b)(6), you are preparing a corporate designee, with a duty to educate the witness about matters known or reasonably available to the organization. Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416 (5th Cir. 2006) explains that duty. Since the December 1, 2020 amendment, the rule also requires the serving party and the organization to confer in good faith about the matters for examination, before or promptly after service. A designee requires a different plan, set out in Preparing and Defending a Rule 30(b)(6) Deposition. Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., 201 F.R.D. 33 (D. Mass. 2001) shows what happens when designees show up unprepared: they were ordered redeposed.

Then decide whether you want this deposition at all, or in this form. A date conflict is resolved by a call. A real objection takes a motion. Serving objections to a notice doesn't excuse attendance, and under Rule 37(d)(2) a failure to appear is not excused on the ground that the discovery was objectionable unless a motion for a protective order is pending. A chief executive may have an apex argument (that a top officer should not be deposed without a showing of unique knowledge), covered in Seeking or Opposing an Apex Deposition: A Practical Guide. Protective order mechanics are in Obtaining and Defending a Protective Order: A Practical Guide.

Calendar backward from the deposition date. If a date moves, every prep session moves too.

Finally, find the forum's rules on conduct at depositions: the local rules, the judge's standing order, and any case management order. Texas, New York, New Jersey, South Carolina, Delaware, and several federal districts have rules on conferring. Read them now, because you will be telling the witness about them in Step 5.

Step 2: Decide who the client is, and say it out loud

Who does this: the lawyer, before any substantive conversation. Timing: immediately.

Use this decision tree.

Sample language for a current employee

Keep it short and human. The formal version is in Witness Preparation Toolkit: Session Agendas, Instruction Sheets, and Practice Examinations. A spoken version:

"Before we start, I need to be clear about my job. I represent [Company]. I don't represent you personally. What we say today is protected by the attorney-client privilege, but that privilege belongs to the company. The company can decide to keep it private or to share it, including with the government or anyone else, without asking you. I'm going to ask you to keep this conversation confidential so the company's privilege is protected. If you feel you need your own lawyer at any point, tell me. Do you have any questions about that?"

Write down that you gave it, when, and who was there. In United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009), the lawyers said they gave the warning and the CFO said he did not recall it, and neither side had a note on it. And don't dilute it. "We can represent you too if no conflict appears" is what drew the Fourth Circuit's criticism in In re Grand Jury Subpoena: Under Seal, 415 F.3d 333 (4th Cir. 2005).

When the company lawyer should not do the preparing

Red signals include a witness who may be fired or sued; a witness whose truthful testimony helps the plaintiff; an individual named as a co-defendant with a different defense; a government investigation; or a witness who asks, "Should I get my own lawyer?" The answer to that last question is rarely no. Companies can usually pay for separate counsel, subject to Model Rule 1.8(f), which requires client consent, no interference with the lawyer's independent judgment, and protection of confidences.

If a witness may need to invoke the Fifth Amendment, a civil deposition is not the place to work that out casually. An inference may be drawn from silence in civil litigation, Baxter v. Palmigiano, 425 U.S. 308 (1976), and the decision is the witness's, made with her own lawyer. For the criminal side of these situations, see Responding to a Grand Jury Subpoena: A Practical Guide for Companies and Executives.

If separate counsel is involved and you want to coordinate, do it lawyer to lawyer under a written common-interest arrangement. In re Teleglobe Communications Corp., 493 F.3d 345 (3d Cir. 2007) explains why sharing must run through counsel, and Hanover Insurance Co. v. Rapo & Jepsen Insurance Services, Inc., 870 N.E.2d 1105 (Mass. 2007) is an example of a state court formally adopting the doctrine.

Decision: representing the former employee

The trade-offs look like this.

A letter usually helps. Sample language appears in Witness Preparation Toolkit: Session Agendas, Instruction Sheets, and Practice Examinations.

Step 3: Build the file before you meet

Who does this: the lawyer and a paralegal. Timing: two to six weeks out, depending on the case.

Before the first session, assemble what the examiner will have.

• Pleadings, contentions, and discovery responses the witness verified or is mentioned in.
• Every document with the witness's name on it in the production, from both sides. Sort them by date. If the production is large, search by email address, username, and nickname. In a software case, include commit logs, ticket histories, and chat handles.
• Prior statements. Earlier depositions, declarations, agency filings, HR investigation statements, social media posts, interviews, and conference talks. A witness or party can obtain her own previous statement on request without any special showing. Fed. R. Civ. P. 26(b)(3)(C). A prior inconsistent statement can be used to impeach under Fed. R. Evid. 613.
• The other side's theory as to this witness. What do they need from her? What three questions would you most want to ask if you were them?
• Depositions already taken. Read them for what the examiner likes to do and what other witnesses said. Whether to share another witness's testimony with this one is a judgment call covered in Step 4.

Check on preservation while you are at it. Ask the witness where she keeps things: work email, personal email, texts, chat apps, a home laptop. If you find something unpreserved or unproduced, fix that before the deposition. A witness who announces under oath that she keeps her real notes in a personal app has created a new problem for her lawyer. See Litigation Hold and Evidence Preservation Checklist: A Practical Checklist.

Step 4: Select the documents

Who does this: the lawyer selects, the witness reviews. Timing: first cut before Session 1; final set before Session 2.

Rule 612 drives this step. Fed. R. Evid. 612 allows the adverse party to obtain a writing used to refresh memory before testifying if the court decides justice requires it. The case law ranges from Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985), which protects a lawyer's selection unless the foundation is laid for specific testimony, to James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138 (D. Del. 1982), which ordered production of a binder. Work product is the protection for a lawyer's trial preparation, and that is what is at stake. Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 183 F.R.D. 458 (D. Md. 1998) gives a nine-factor balance, and it looks hard at witnesses who claim nothing refreshed them.

A three-tier method

Tier 1: Must know cold. The ten to thirty documents the examiner will certainly use. Bad emails, the contract, the key chart, her own declarations. The witness reads every word, because a witness asked about paragraph 9 will be shown paragraph 9.

Tier 2: Should recognize. Documents she wrote or received that bear on the issues. She skims them and can say what they are.

Tier 3: Lawyer's reference. Everything else. The witness doesn't see it, because the more she reviews, the more she's testifying from your reading of the file.

Rules for what goes in

1. Produced documents only, with Bates numbers visible, unless you've decided to produce the document anyway.
2. No lawyer-made material. No chronologies, annotated copies, summaries, highlighted versions, or sticky notes. In Ibarra v. Baker, 338 F. App'x 457 (5th Cir. 2009), an expert's highlighted, marked-up transcript was handed to an officer the day before his deposition, and it became a central fact in the sanctions order.
3. No privileged documents used to refresh, unless the client has made a conscious decision about waiver. In Nutramax, one document among the 32 reviewed by a witness was held out because it was attorney-client privileged, but no one should count on that outcome, and in Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613 (S.D.N.Y. 1977), Judge Frankel warned that materials withheld from opponents should be withheld from witnesses.
4. Don't sort by theme. A folder labeled "Good documents on causation" is the opinion work product Sporck protects, and it's also an unnecessary gift if a court orders it turned over. Chronological order teaches the story and gives less away.
5. Keep your own list of what was shown, in your file, by Bates number and session date.

How to deliver documents

Think about what actually happens to the file. Emailing a PDF of the binder to the witness's work account creates a copy on the company's mail server, possibly subject to the same collection you're defending, and a thing she can forward. Giving her a login to the review platform creates access logs that record what she opened and when. Those logs can be useful as proof of what she reviewed, and they may be discoverable themselves. The simplest method for most witnesses is paper, reviewed in the session, retained by the lawyer at the end, or a view-only link that is limited in time. If she needs to study overnight, a printed set she returns is usually better than anything in her inbox.

Should the witness see other witnesses' testimony?

ABA Formal Opinion 508 (2023), the ABA's ethics opinion on witness preparation, lists identifying other expected testimony and exploring the witness's version in light of it as acceptable. But State v. Earp, 571 A.2d 1227 (Md. 1990) warned that the potential for influence is great when testimony bears directly on the facts the reviewing witness will recount. Peralta held that telling a former employee what others said was unprivileged, partly because of "their potential to influence a witness to conform or adjust her testimony." The practical approach: for a client or current employee, disclose only what you need to in order to test her memory, and only after she has given you her own account. For a former employee or third party, assume you'll be asked about it. Check for any order that restricts sharing transcripts. A court can also limit who attends a deposition under Rule 26(c)(1)(E).

Step 5: Schedule the sessions

Who does this: the lawyer sets it; the witness shows up with phones off. Timing: as below.

Here is a realistic default for an important fact witness in a commercial case. Scale it to the stakes.

Rough cost: that is 9 to 13 lawyer hours with the witness, plus preparation for each session. Add a second lawyer for the mock. For a modest case, or a peripheral witness, combine Sessions 1 and 2 into one half-day and do a 45-minute mock at the end. For a low-value case with a witness who has one narrow thing to say, 90 minutes may be fine. For a CEO, or the plaintiff in a bet-the-company case, double it. The ratio that matters is what the deposition will cost you if it goes badly. A single bad answer may decide a summary judgment motion.

Who attends? The lawyer, usually a junior lawyer or paralegal, and the witness. Spouses, friends, and coworkers should stay out, since a stranger to the privilege in the room can destroy it. A company representative other than in-house counsel is a question worth asking before you allow it. An interpreter, where needed, should be someone working for counsel. Witnesses should be prepared one at a time.

What is said in Session 1, at the start:

• Tell the truth. It's the only job, and the rest is technique.
• Nothing I say should change what you actually remember. If I ever say something that sounds like I'm telling you what happened, stop me.
• Please don't write anything down, search your files, or talk to other witnesses about this. If you have something, tell me.
• Don't use an AI chatbot or a search tool to rehearse or to organize your thoughts about this case. What you type there leaves your device and may not be protected. A federal court held a defendant's consumer chatbot exchanges unprotected in United States v. Heppner, No. 25-cr-503 (S.D.N.Y. Feb. 17, 2026).

Then explain the room: who sits where, what the court reporter does, how the oath works, how long it lasts (Rule 30(d)(1) sets a default of one day of seven hours), what an objection sounds like, and what to do when one happens. Answer unless told not to. The objecting lawyer can only state it concisely and nonsuggestively, under Rule 30(c)(2).

Next, ask open questions. "Tell me how you came to work on this account." Don't lead, and don't show her anything yet. Take your notes on your own legal pad, not in any shared document. They're work product under Rule 26(b)(3) and Upjohn Co. v. United States, 449 U.S. 383 (1981). The witness needn't see them.

What to teach, with reasons

A witness follows instructions better when she understands them. Don't hand over rules, explain why each exists. A one-page instruction sheet is in Witness Preparation Toolkit: Session Agendas, Instruction Sheets, and Practice Examinations.

Formal Op. 508's list of accepted techniques covers nearly everything above, including telling witnesses not to volunteer, not to guess, and to stay calm.

Step 6: Walk through the documents and the bad facts

Who does this: lawyer and witness together. Timing: Session 2.

Go through in date order. For each document ask: Have you seen this? Did you write it? What did you mean? What happened next? What does it remind you of? Where the witness's memory and the paper disagree, explore it. People misremember, and sometimes the paper is wrong. Don't resolve the conflict for her. Your job is to make sure she has seen the problem and has thought about what she actually remembers.

Then spend real time on the bad facts. Every case has them. A witness who has seen the terrible email for the first time on the record reacts in a way that will be shown to a jury. A witness who has already read it, thought about it, and remembers why she wrote it can answer steadily. It's perfectly proper to ask "What did you mean by this?" and to discuss whether her words explain her meaning. It's not proper to give her a meaning.

Testing the difference. Ask yourself three questions about anything you're about to say.

1. Is this a fact she told me, or one I'm supplying?
2. If she repeats this and the examiner asks, "Whose word is that?", is there a true answer?
3. Would I be comfortable if the sentence were read to the judge?

If the answers are "she told me," "yes," and "yes," you're on the right side. Ibarra v. Baker, 338 F. App'x 457 (5th Cir. 2009) says lawyers get "extensive leeway" in preparing a witness to testify truthfully and cross the line when they influence a witness to alter testimony "in a false or misleading way."

Worked example: the customer-support lead

Suppose Marisol Vance leads customer support at a hypothetical company, Ternwell Software, sued for deleting a customer's data. In Session 2 she sees an email she sent: "We wiped their tenant before the 30 days ran. Not good." She's visibly upset.

Improper: "What you meant was that the cleanup job ran on schedule, right? 'Wiped' is just slang. I'd say 'the scheduled retention job completed.'"

That hands her a fact and a phrase she did not supply, and it may be false.

Proper: "Take your time. What do you remember about this? What did 'wiped' mean to you when you wrote it? What was the 30 days? What do you mean by 'not good'? Do you know whether anyone looked into why it ran early? How do you know that?"

Suppose she answers that a scheduled job deleted the tenant, she learned this from an engineer afterward, and "not good" meant the customer would be upset. Now the lawyer may legitimately say: "If you're asked, say what you remember and how you know it. If you learned something from Arjun, say you learned it from Arjun. If you don't know why it ran early, it's fine to say that." That's preparation: she'll testify about what she knows, with its source, without adopting a version of events she didn't witness. Fed. R. Evid. 602 requires personal knowledge at trial, though the examiner is allowed to ask for hearsay at deposition, and the witness should say when her knowledge is secondhand.

Step 7: Run the mock examination

Who does this: ideally a lawyer the witness hasn't met in preparation, acting as the examiner. Timing: Session 3.

A mock works because of stress, and familiar faces don't produce much of it. Use someone new, a colleague in the firm, if the budget allows it. Sit the witness at a table, with a camera at about the height and angle that the videographer will use. Stay in character for 30 to 45 minutes, using the real documents and the hardest real questions, and using the tactics the examiner is known for. If you have prior transcripts from this examiner, imitate them.

Good mock chapters:

• The prep chapter. "What did you do to prepare? Who was there? How long? Did you look at documents? Which ones? Did any refresh your memory?" Practice these, because they come first and set the tone. The examiner may be following Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985): first testimony, then "Did any document inform that?"
• The rapport chapter. Friendly, slow, agreeable background questions, designed to get her used to saying yes.
• The summary chapter. "So would it be fair to say that...?" Teach her to listen for what got added.
• The silence chapter. Answer and then have the examiner stare at her for a full 15 seconds. Most people will fill it. She shouldn't.
• The document ambush. Hand her a document she doesn't know and press for a fast answer. She should read it first.
• The safety chapter, for plaintiffs' lawyers using the Reptile approach: "You'd agree safety should always come first?" Absolutes are the trap. See Cross-Examination Methods Compared: Pozner-Dodd, Younger's Ten Commandments, the Reptile, and the Reid Technique.
• The closure chapter. "Have you told me everything?" She should be able to answer "That's what I recall right now." Examiners ask this to box her in later.

Then play the video back and watch together. Keep the critique on these four matters: Did you answer the question? Did you add anything? Do you look like you are telling the truth, and comfortable? Was that accurate? If it wasn't accurate, ask her what the accurate answer is, and don't supply it.

What feedback is fair

Formal Op. 508 treats that last phrase as the ethical equivalent of counseling falsehood. Bright and Ibarra give you the outer limits on pressing a witness. Resolution Trust Corp. v. Bright, 6 F.3d 336 (5th Cir. 1993) cleared lawyers who pushed hard but left the decision to the witness. Repetition is fine. Repetition until the witness adopts your version isn't.

What to do with the video

A mock video is a record of a witness being wrong about things, with a lawyer's critique on the audio. Treat it carefully. Record on a firm device and not the witness's phone. Do not email it. Show it in the session. Decide with your firm's policy and your preservation obligations in mind whether to keep it at all; many lawyers would rather not generate a file they then have to think about. If you keep it, it belongs in the lawyer's work product file, and it should stay there.

Step 8: Adjust to the witness

The nervous witness

Signs: a dry mouth, over-agreement, apologizing, or asking if her answer was "okay." Fear makes witnesses agree with the examiner and fill silence. It also leads to the kind of confusion that later looks like lying.

• Add a short extra session devoted to the process alone. Show her a photo of the conference room, or go there. Familiarity lowers the temperature.
• Explain what can't happen. She won't go to jail for honestly not remembering. She won't be yelled at, and if she is, there's a remedy: Rule 30(d)(3) allows a motion to terminate or limit when a deposition is conducted in bad faith or in a way that unreasonably annoys, embarrasses, or oppresses the deponent.
• Practice saying the few phrases that help. "I don't remember." "I don't understand the question." "I need to read this." "I'd like to take a break after this answer."
• If a medical condition or a medication affects memory or stamina, tell the lawyer. The examiner will ask about it, and accommodations and shorter sessions can be sought. If the condition is serious, a protective order may be appropriate.
• If she's an employee and afraid for her job, deal with that directly. Say that the company's interest is in the truth, and if you can't say that truthfully, she needs her own lawyer.

Worked example: the overconfident founder

Suppose Anton Reyes founded a hypothetical analytics company, Harrow Bay, and is being deposed in a contract dispute. He has testified nowhere and raised three funding rounds. He told his lawyer, "I'll handle this guy." In the mock:

Q. Did Harrow Bay meet the delivery date in the agreement? A. Look, you have to understand how these things work. Deadlines in enterprise software are aspirational. Everyone knows that. We delivered something way better than what they asked for, and they knew it was coming late. And frankly their own engineers were the reason.

Count the damage. He has conceded lateness without being asked. He has characterized a contract deadline as "aspirational." He has testified to what "everyone knows" and what the customer "knew," with no foundation. He has attacked the customer's engineers, which opens a line of questions he hasn't prepared for. If the answer is that the date was missed, the truthful short answer is "No," and if he wants to explain why, the time is when asked, or on his lawyer's follow-up.

He won't believe you when you tell him this. Play the video. Then read the transcript aloud to him in a flat voice, the way a lawyer will read it to a jury or a judge will read it on summary judgment. Let him hear what it sounds like when "aspirational" is pulled out and put next to the indemnity clause.

Second round, same question:

A. No. Q. How late was it? A. About six weeks, as I recall. I'd want to look at the emails to be exact. Q. Why was it late? A. There were a few reasons. The main one I recall was that the customer's API credentials arrived about a month after we asked for them.

Same facts, truthful, and now they can be defended. This is a case where the lawyer properly asked him to testify more narrowly, and the content is entirely his.

The executive

An executive combines the founder's habits with a real time limit. She won't read documents, and she'll offer you 30 minutes. Be firm about the minimum, and get an assistant or general counsel to protect the calendar. Executives also tend to answer for the whole organization. Teach her to distinguish what she knows personally from what she was told and what the company as a whole may know. Rule 32(a)(3) lets the other side use an officer's deposition for any purpose, so a loose answer is especially costly.

The non-native speaker or witness who needs an interpreter

Decide early, with the witness, whether to use an interpreter. Witnesses with conversational English often overestimate their ability under stress, and "ratio" versus "percentage" can decide a case, as in Odone v. Croda International PLC, 170 F.R.D. 66 (D.D.C. 1997), where a witness's asserted confusion over those terms became the subject of a sanctions fight. Prepare through the same interpreter or one of the same quality. Practice the pacing. The examiner's interpreter may render a word differently, and the witness should know she may say so.

The witness with a poor memory, or an old case

Events may be years old. Rule 612 will matter more, since a Nutramax factor is whether events are old. Teach the difference out loud: "I remember this," "I don't remember, but the document says this," and "I don't remember and don't know." Examiners are entitled to know which one they're getting.

The hostile or unwilling former employee

You may not get to prepare her at all, and you can't tell her not to talk to the other side. Model Rule 3.4(f) limits requests to refrain from voluntarily giving information to the client's relatives, employees, and agents, and only where their interests won't be harmed. A former employee generally falls outside. She may be contacted by the other side's lawyer; comment [7] to Model Rule 4.2 says consent of the organization's lawyer is not required to talk to a former constituent, although lawyers still may not elicit privileged material. A polite letter stating who you represent and offering to talk may be all you can do.

The expert

Expert preparation has its own rules on drafts and communications with counsel. See Taking and Defending an Expert Deposition: A Practical Guide. Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613 (S.D.N.Y. 1977) is itself an expert case, and what an expert was given remains a favorite target.

Step 9: Prepare for a remote deposition

Who does this: lawyer and witness, plus whoever handles the technology. Timing: at least one test session on the actual platform.

A remote deposition feels easier and is harder. Witnesses are at home, relaxed, and alone with their devices. The examiner can't read the room, and you can't read the witness. Do these things.

Decide where the witness and defending lawyer sit. Same room is often best for the witness's comfort and for managing exhibits, but expect a request on the record to identify anyone in the room, and expect suspicion about off-camera behavior. If separate, agree that counsel and witness will not communicate except on breaks to the extent the forum allows.

Clear the desk. No phone within reach. Close email, chat, and every other application. Turn off notifications; a calendar alert or a chat preview popping up on a shared screen is an embarrassment and potentially a real problem. Use one screen if possible. If a second screen is needed for exhibits, say so on the record.

Explain what is really happening technically. The video platform is one stream among many on the device. The chat panel and the breakout room are features of the same platform, and the host may be able to see or log them. Text messages are stored by carriers and on both phones. In Ngai v. Old Navy, 2009 WL 2391282 (D.N.J. July 31, 2009), the court ordered production of texts sent during a video deposition and described them as electronic note-passing. The Florida Supreme Court disciplined a lawyer for doing the same thing in The Florida Bar v. James, 329 So. 3d 108 (Fla. 2021), and a federal court in Massachusetts disqualified one who fed answers off camera in Barksdale School Portraits, LLC v. Williams, 339 F.R.D. 341 (D. Mass. 2021), both as summarized in ABA Formal Op. 508. Tell the witness: "If your phone buzzes, don't look at it. If anyone from our side ever messages you during this, don't answer and tell me at the next break, because we would have a serious problem."

Rehearse exhibits. Will the examiner share screen, or send a link? Can the witness scroll by herself, or only see what the examiner shows? A witness is entitled to read the whole document, and she should say so if she can see only a page. Practice this. "Can I see the rest of that, please?"

Camera, sound, and light. Camera at eye level. Plain background. Light in front of the face. Wired internet if possible. Headphones are often requested to be off, so test speaker volume. Plan what happens if the connection drops: stop, reconnect, and on return, ask to have the last question read back.

Protocol. Examiners may ask for on-the-record agreement that no one is communicating with the witness and that no other documents are being consulted. Formal Op. 508 suggests such protocols as a precaution. Agree, and mean it. A proposed stipulation is in Remote Deposition Toolkit: Stipulated Protocols, Exhibit Plans, and Technology Scripts, and the steps are in Taking and Defending a Remote Deposition: A Practical Guide.

Step 10: The day before and the morning of

Day before. One hour at most. Walk through logistics and revisit the two or three hardest points. Don't introduce new documents unless you have to, and if you do, be aware that last-minute review is exactly what a court examines under Rule 612's "for the purpose of testifying" element. Tell her to stop studying by dinner. Sleep helps more than another pass through the emails.

Things to bring. A government ID for the oath. Medications. Water. A snack, because lunch may be late. Reading glasses. Nothing else: no notes, no documents, unless a subpoena requires them. Anything she uses at the table to refresh her memory can be demanded under Rule 612(a)(1), and the officer in Ibarra v. Baker, 338 F. App'x 457 (5th Cir. 2009) who brought a page of notes learned how far that can go.

What to wear. Business clothes she feels like herself in. On video, avoid fine stripes and bright patterns. This is on the ABA's list of acceptable advice, and no one should be embarrassed to give it.

Morning of. Meet her first somewhere other than the deposition room. Walk in together. Small talk with the other side is fine and should stay small, since nothing said there is privileged, and a friendly exchange in the hallway can become a question an hour later. Take the seat you discussed. Silence the phone, or better, leave it with the lawyer's assistant. Ask for water before starting. Remember the elevator is not private, and neither is the restroom.

Step 11: During the deposition, know your break plan

Before going on the record, you need one decided rule, based on your forum. Use this.

Whatever your rule, tell the witness in advance: "If we take a break, don't talk to me about the testimony unless I raise it. You may be asked if we talked."

When an objection happens, stop and let it finish, then answer unless instructed not to. If she can't remember the question, ask to have it read back.

When a privilege question comes, she should pause. Her lawyer will object and may instruct. If the witness herself worries, she may say so: "I'd like to talk to my lawyer about whether this is privileged." Most courts allow that conference even with a question pending. Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993) requires it to go on the record.

When the deposition turns ugly, the defender may move under Rule 30(d)(3)(A), and on demand the deposition must be suspended for the time needed to get an order. Sanctions under Rule 30(d)(2) can run both ways, and the risks are explained in Deposition Objections and Instructions Not to Answer: What Rule 30 Allows and What Gets Lawyers Sanctioned. A blanket instruction not to answer based on work product, as in Resolution Trust Corp. v. Dabney, 73 F.3d 262 (10th Cir. 1995), drew personal sanctions. Fees can also follow under 28 U.S.C. § 1927.

When she realizes a mistake, she should say so at the next opportunity. "I'd like to correct something I said earlier." If the realization comes from a conversation at a break, the examiner may ask what prompted it. In Odone v. Croda International PLC, 170 F.R.D. 66 (D.D.C. 1997), a magistrate judge refused to sanction a lawyer whose client clarified confusion during a recess that the defendant had called, and left the inconsistency for trial.

At the end, the defender decides whether to ask clarifying questions. Keep them few. Then request review: "We'd like to read and sign under Rule 30(e)." That request must be made before the deposition is completed.

Step 12: After the deposition

• Debrief with the lawyer, orally and promptly. Don't write the witness's impressions into an email chain or a chat.
• Don't discuss the testimony with other witnesses. If the deposition is continuing, treat that as a live restriction, and check any court order.
• Calendar the 30 days. Under Rule 30(e)(1), the witness has 30 days after being notified that the transcript is available to review it and, if there are changes in form or substance, to sign a statement listing the changes and the reasons. Deadline mistakes here are hard to fix. See Missed Federal Deadlines: Rule 6, Excusable Neglect, and the Deadlines a Court Cannot Excuse.
• Read the transcript critically. Fix transcription errors. If there's a substantive error, the witness can make a change with a reason, but courts vary. Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir. 2000) and Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217 (9th Cir. 2005) take the narrow view of contradictory changes. The original answer normally stays available for impeachment. Tasks for this stage are in Deposition Designation and Errata Checklist: A Practical Checklist.
• Consider supplementing. If the testimony showed that a discovery response was incomplete or wrong, deal with it. If the lawyer learned that testimony on a material point was false, Model Rule 3.3 applies when the testimony has been or will be offered.
• Keep the witness informed if she may testify at trial, and save the transcript for her trial prep. She'll be cross-examined on it, line by line. See Designating and Playing Deposition Testimony at Trial: A Practical Guide.

If you are the witness, and you have no lawyer

Suppose you got a subpoena because you used to work somewhere or you saw something. You aren't a party. What now?

You can hire a lawyer for this one thing. Many lawyers will do limited-scope work on a subpoena for a few hours. It's worth paying for if you may have personal exposure, the case involves your former employer, or you signed a confidentiality or separation agreement.

Check the subpoena. It should be issued from the right court, name a place within the Rule 45 limit, and come with the attendance and mileage fee required by Rule 45(b)(1). If it asks for documents, it may have an earlier deadline to object in writing, under Rule 45(d)(2)(B). If the burden is real, a motion to quash or modify is available under Rule 45(d)(3). Details are in Rule 45 Subpoenas to Nonparties: Service, Objections, and Motions to Quash. You can't simply skip it. Contempt is possible.

Find out who's calling. If a lawyer calls you, ask whom she represents and whether she represents you. Unless she's your lawyer, what you tell her may not be private. You're allowed to talk with her, and you're allowed to say no. Don't ask her for legal advice about your own situation. She generally can't give it.

Prepare yourself honestly. You can look at documents you legitimately have, and reading your own old emails to refresh your memory is fine. Don't take documents from a former employer you're not entitled to have, and check your separation agreement. Don't destroy anything, including your texts. Write nothing new. A timeline you draft for yourself on the eve of testifying isn't protected as attorney work product if there's no lawyer involved, and it may be demanded. Don't paste questions or facts into a chatbot. Don't compare notes with other witnesses.

Rehearse with a friend, if it helps, without discussing the facts. Ask someone to ask you about your job or your last vacation, and practice waiting before you answer, stopping when done, and saying "I don't remember." The skill transfers.

On the day, bring ID, read what you're shown, and tell the truth. When the deposition ends, ask to read and sign. If you've got no lawyer, nobody will do it for you.

From the other side of the table: what examiners do with all this

A defender who knows how a skilled examiner approaches preparation can get ready for it. An examiner reading this should ask:

1. Did you meet? With whom? For how long? This is not privileged, and a big number is worth having.
2. Have you spoken with anyone else? Peralta v. Cendant Corp., 190 F.R.D. 38 (D. Conn. 1999) began with this. Non-lawyer conversations are generally open.
3. Testimony first. Lock in the specifics on a topic, and then ask: "Did you look at anything that helped you remember that?" This is the path Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985) recommends, and it avoids the selection fight.
4. Rule 30(b)(6) designees. Press harder. Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 183 F.R.D. 458 (D. Md. 1998) found a heightened need.
5. Motion if needed. If instructions are overbroad, make a record and move under Rule 37(a)(3)(B)(i), asking for in camera review of the documents (private review by the judge), and remember that a witness's denial that anything refreshed her can be tested circumstantially. See Motions to Compel and Discovery Sanctions Under Rule 37: From Meet and Confer to Default Judgment.
6. Ask about coaching respectfully. Geders v. United States, 425 U.S. 80 (1976) approves cross on the extent of coaching, subject to the court's control. Under Hall, some conferences may be asked about directly.

More is in Cross-Examining an Adverse Witness at Deposition: A Practical Guide. For conduct problems, see Handling Objections, Coaching, and Misconduct at a Deposition: A Practical Guide.

Common mistakes

Preparing in one sitting, the day before. The witness can't absorb both documents and technique, and there's no time to fix what you find.

Starting with the documents. You've taught the witness your version before you've learned hers.

Reading her the case theory. A short explanation of the issues and strategy is on the ABA's acceptable list. A monologue on what the case needs is an invitation to conform. In Ibarra v. Baker, 338 F. App'x 457 (5th Cir. 2009), legal terms that showed up in the witness's mouth were the evidence.

Skipping the Upjohn warning because she's nice, or senior, or "knows you." The conversation that matters later is the one where nobody remembers what was said.

Treating a former employee like an employee. The conversation in Newman v. Highland School District No. 203, 381 P.3d 1188 (Wash. 2016) was sought in discovery, and the one in Peralta v. Cendant Corp., 190 F.R.D. 38 (D. Conn. 1999) was asked about at the deposition.

Handing out a highlighted set. Your highlights are your thinking. Hand over clean copies.

Letting the witness bring notes "just in case." Under Rule 612(a)(1), they are likely going to the other side.

Preparing witnesses together, to save money. It looks terrible, it may affect their memories, and it gives the other side a good chapter.

Telling a witness to say "I don't recall" whenever in doubt. The right instruction is about truth, not safety. "The less you recall the better" appears in Formal Op. 508 as an example of misconduct.

Having no answer ready for "How did you prepare?" It's the first question in many depositions. A flustered answer to an easy question costs credibility for the whole day.

No plan for breaks. The lawyer who says "Let's step out" with a question pending, as counsel did in Plaisted v. Geisinger Medical Center, 210 F.R.D. 527 (M.D. Pa. 2002), has handed the other side a motion and a redeposition order.

Hallway conversations in the courthouse or office. Everyone in that elevator can hear you.

Over-preparing. A witness who sounds rehearsed loses credibility. If she begins to repeat the same phrases, stop rehearsing that topic.

Forgetting to ask for review. Rule 30(e) review has to be requested before the deposition ends.

This guide offers general information and can't replace advice from a lawyer who knows your forum, your facts, and your witness. If you'd like help planning preparation for a difficult witness, the firm can talk through the options. Practitioners will want the rest of the set: Deposition Witness Preparation Checklist: A Practical Checklist for the desk and Witness Preparation Toolkit: Session Agendas, Instruction Sheets, and Practice Examinations for the forms.

Related Documents

Related Articles

• Preparing a Witness for Deposition: What Is Proper, What Is Coaching, and What the Other Side Can Discover: the law behind every step here.
• The Art of Defending Depositions in Federal Court: A Comprehensive Guide: defensive strategy beyond preparation.
• Remote Video Depositions: Logistics, Remote Exhibits, Objections, and the Off-Camera Coaching Problem: more on remote risks.
• Hearsay and Business Records at Trial: Rule 803(6), Self-Authentication, and Getting Documents Into Evidence: why a witness's foundation testimony on documents matters later.

Related Guides

• Preparing and Defending a Rule 30(b)(6) Deposition: the organizational version of this process.
• Handling Objections, Coaching, and Misconduct at a Deposition: A Practical Guide: when problems arise on the record.
• Taking and Defending a Remote Deposition: A Practical Guide: the remote logistics.
• Recovering an Inadvertently Produced Privileged Document: A Practical Guide: what to do if a prep document got out.

Related Checklists

• Deposition Witness Preparation Checklist: A Practical Checklist: this guide reduced to tasks and authority.
• Defending a Deposition Checklist: A Practical Checklist: the day-of tasks for defending counsel.
• Remote Deposition Checklist: A Practical Checklist: the setup list for video.

Related Toolkits

• Witness Preparation Toolkit: Session Agendas, Instruction Sheets, and Practice Examinations: agendas, instruction sheets, mock outlines, the Upjohn script, and the former-employee letter.
• Deposition Practice Toolkit: Taking, Defending, and Using Depositions in Federal Litigation: broader deposition forms.