CASE STUDIES

Truthful Dan

We all advise our witnesses to tell the truth. If they do that, they will have nothing to fear. But the truth isn't always that protective. Let me tell you about Dan because he was as truthful as they get. He was a brilliant data analyst at a major corporate research laboratory and a key player in a $75 million trade secrets case. He was also a free spirit and an uninhibited witness.

In his deposition, which was videotaped, Dan was truthful to a fault and said exactly what he felt. He was angry about the lawsuit, testy with the lawyer and confused about key dates. He argued over incontrovertible facts and gave up damaging points. Near the end of the deposition he got tired and frustrated and blurted out: "Yes, I was trying to sabotage their project!" This was an admission of one of the central claims in plaintiff's complaint. The plaintiff was thrilled and planned to call Dan as one of their two star witnesses.

That presented a key tactical issue. Do we call Dan live? Trial counsel was understandably reluctant to call him for fear of what else he might say, but in-house counsel felt there was no choice because of the videodeposition. I tell this story because the decision to call him was based largely on a calculation that he could do better. We prepared him for an adverse exam.

His testimony covered a two year period. We organized his emails around three time periods. Each time period had a story and each email was anchored in one of the periods. That provided context and minimized the risk that he would get confused about the dates. We ran him through three mock exams to give him a feel for the questioning. We started gently and finished aggressively - one exam a day. Even though he was going to be cross examined first, we started each mock exam with direct exam to solidify his story and build up his confidence. We poked at his sore spots so he developed a callous and didn't lose his composure.

We taught him about control and how he had more control than he thought. That while the cross examiner would try to maintain control through his questions Dan had some control through his answers. That made him feel less vulnerable and boosted his confidence. We explored three or four areas where we thought he could safely and politely counterpunch, if the opportunity arose, and instructed him not to try it other than in those specific areas. I know that is risky advice, but I thought Dan needed to feel as if he had some offensive weapons. Again, it's about confidence.

In court he was terrific. The emails were there for all to see but he was untroubled by them and that defused their potency. He was composed and charming. The verdict went against us but it was a tiny fraction of what we feared.