Avoiding the Deposition ‘Sizzle Reel’: How In-House Counsel Can Protect Company Witnesses
A deposition is usually an unwelcome interruption for executives and employees. But for a company embroiled in high-stakes litigation, witness depositions may be the most consequential events in the case. In-house counsel are well-positioned to ensure busy executives take the process seriously and outside counsel prepares them thoroughly. The strategies below offer a roadmap for in-house lawyers seeking to maximize witness performance and minimize the risk of damaging testimony.
Deposition is the First Day of Trial
The prevailing view among many defense and commercial litigators—that depositions are merely a discovery tool—is dangerously outdated. Today’s trial lawyers harvest admissions and soundbites in deposition that they can use at trial and in summary judgment. With depositions routinely recorded on video, a skilled trial lawyer can distill an all-day deposition into a 15- to 20-minute “sizzle reel” highlighting the witness’s worst testimony and play it for the jury before the witness ever takes the stand.
This practice is especially dangerous for corporate defendants. When jurors see deposition clips during the plaintiff’s case-in-chief, they form impressions of the defense witness long before direct examination. And jury consultants consistently report that jurors trust a witness’s deposition testimony over their trial testimony—viewing the deposition as the unvarnished version before the witness was “cleaned up” for trial.
While most cases never reach trial, the potential outcome of trial is a primary driver for settlement value. And given the ways a bad deposition can color jurors’ (and judges’) thinking at trial, company witness depositions carry outsized importance in litigation.
