By Mark A. Basurto, Michael A. Gross, & Michelle S. Putvin

Everyone involved with defending corporations knows the importance of testimony offered by the corporation’s representatives. This testimony can set the tone for the defense themes of the case. The goal is to ensure the corporation’s truth is spoken clearly, and in a way that presents the corporation to the jury in a positive way. To effectively present the corporation’s truth there are several key areas that require attention. First, everyone should have a good understanding of the requirements of a 30(b)(c) deposition. Second, you should present the best person to advocate for the corporation. Finally, the designee should be empowered to speak the corporation’s truth.

Rule 30(b)(6) requires the corporation to designate one or more individuals to testify on its behalf and that testimony is binding on the corporation. The noticing party must be specific enough regarding the areas they wish to inquire about so that the corporation can produce the appropriate witness(es) to speak on those matters. Courts have consistently held that the corporation must produce as many witnesses as necessary to cover the topics in the notice. The witness need not have personal knowledge about the noticed subjects, but rather must testify as to the knowledge of the corporation. Accordingly, the company must prepare the designee to the extent information is reasonably available, whether from documents, past employees, or other sources. Failure to either present appropriate witnesses or to appropriately prepare the witnesses can lead to sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure. Sanctions under Rule 37 include striking pleadings, staying proceedings, and even dismissal or default judgment.

It goes without saying that preparing the 30(b)(6) witness starts with selecting the right person to testify on behalf of the corporation. You should start by considering who is the best listener. Good listeners are typically attentive and thoughtful. A good listener stands a better chance of controlling the pace of the deposition, which is imperative when the opposing attorney may ask questions designed to get the witness to give quick, impulsive answers. The goal should be to have the designee give testimony that demonstrates that the company and its employees are competent, confident, and compassionate, and these qualities are typically associated with good listeners.

Educating the designee on the specific topics in the notice should include more than just the hard facts that are responsive to each topic. The designee should understand the factual allegations made by the opposing party, the theories asserted by the opposing party, and the corporation’s truth, theories, and themes.  Whatever facts exist that are responsive to the specific topics, they need to be presented in context so that the designee can defend against any theories asserted by the opposing party and, at the same time, consistently present the corporation’s truth during the deposition.

One way the designee can be tested on his or her understanding of the parties’ theories is by having the designee give a limited “opening statement” for each side of the case during the preparation. Beyond just the facts, the designee will likely have to assert the positions of the corporation, offer opinions, commit to what is and is not a “policy”, interpret events and otherwise answer very difficult questions that will bind the corporation in that case or beyond.  Your counterpart sees this corporate deposition as the best opportunity to establish his or her client’s story and the designee should be prepared to reject it and counter with the corporation’s truth.

Finally, the designee should be familiar with any documents you expect will be used during the deposition or that can assist the designee in responding to questions. The designee should expect to use the documents available to help formulate answers.  In other words, rather than just waiting to have a document put in front of him or her, the designee should have certain documents within reach and to voluntarily use them to assert or support an answer. The deposition should be an “open book” test and not a memory test. Accordingly, the designee should be encouraged to use whatever documents are available to make sure that the answer is right, and that the corporation’s truth is presented clearly and accurately.

The ability to speak the corporation’s truth boils down to two skills: (1) active listening and (2) the ability to take control of the deposition. Teaching these skills takes time and patience by the attorney and requires the attorney to dispense with the traditional method of lecturing. It is difficult to verify that the designee is paying attention to your instructions. Lecturing and providing a list of dos and don’ts will lack context and may result in the designee not knowing what instruction to follow in any given situation. So ask questions instead.     

Listening is the single most important skill that the designee, or any witness for that matter, must have.  To teach it requires the attorney to listen carefully. Ask questions. Pay attention to the answers. Is the designee answering directly? Is the designee drifting from the original question? Is the designee rambling? Is the designee answering too quickly? Is the designee talking over your head? Is the designee speaking confidently or expressing doubt? Actively listening (which is the skill you want your designee to have) will give you a better chance to address any challenges the designee is having.

Moreover, while the designee can have a wealth of learned knowledge and may have learned the corporation’s themes, you can never predict exactly how the opposing lawyer will frame his or her questions. This is why lecturing the designee and giving scripted answers often fails. With one word the opposing lawyer can change the question leaving the designee to try to remember “the right answer” to a different question. However, if the designee is listening carefully to the question, a well-prepared designee will be able to answer any relevant question in the scope of the designated topics with a clear, concise, and convincing answer.

Taking control of the deposition means teaching the designee to control the narrative and take it away from the opposing attorney. The opposing attorney uses leading questions to control the deposition and tell the story. The opposing attorney is relying on you to instruct the designee: (1) to answer with a “yes,” a “no,” or “I don’t know; (2) to keep the answers short; (3) to not volunteer any information; (4) hold back the story.  With these instructions the opposing attorney stands a good chance of getting his or her client’s story told through your designee. This process must be abandoned in favor of an active and aggressive approach that allows the designee to take control of true story.

Changing from this old methodology is made more imperative considering the reptile theory.  It is a general rule that lawyers are prohibited from putting the jurors in the shoes of the plaintiff. The plaintiff’s bar has attempted to circumvent this long-standing rule by appealing to the primitive or reptilian brain of jurors. They do this by asking questions that are designed to wake up the reptile brain in jurors and perceive that the events which caused plaintiff’s injury is a threat to the jurors’ survival. If the designee agrees with the question posed by answering with a simple YES, the designee is affirming and giving credibility to the plaintiff’s distorted and oversimplified story. Moreover, reptile questions are an attempt to shift the standard of care from doing what is “reasonable” to doing what is “safe.” Teaching the designee how to respond is not an easy task because the questions are framed in a way that only an unreasonable person would ever answer anything but yes.

For example, in a premises liability case where a customer gets assaulted in a parking lot, the corporation will often gets sued for not having enough security personnel or enough cameras.  The corporate designee could get asked questions like these:

Answering these questions unequivocally with a “yes” has the effect of shifting the standard of care to doing what is safe rather than what is reasonable. These questions are extremely seductive, and if the designee is instructed to only answer “yes” or “no,” to keep the answers short, and to not volunteer information, then the designee falls right into the trap set by the opposing attorney. Instead, the designee should to take control by answering directly and then pivoting to the corporation’s message.

To be clear, this is not a political pivot. Politicians never answer questions. They avoid and evade leading us to conclude that they don’t want to tell the truth.  Instead, the designee must first answer the question directly (Yes, No, It depends, Not necessarily) and then transition to the corporation’s message so that the designee speaks the whole truth in the answer.

Once the designee gives a direct answer, the pivot is used to make the answer complete. This method allows the designee to control the message, advocate for the corporation, and honor the oath to give the jury the whole truth.  Here are pivots that control the story and advocate for the corporation with the sample reptile questions from above.

In these questions, the designee is advocating the corporation’s narrative that it did what was reasonable and began to assert one of the corporation’s themes of the case — that random, unpredictable acts of violence can’t be prevented. 

Controlling the story and advocating the corporation’s position also comes into play when answering factual questions related to the case. Often enough, the plaintiff’s attorney attempts to distort the truth by asking questions that only tell part of the story. The designee is required to admit the answer to that question, but failing to pivot leaves the answer incomplete and the whole truth is not told. Here is an example in a medical malpractice case:

In both cases the designee had to answer “yes,” but the pivot gives the designee the opportunity to speak the whole truth.

The final step is to practice with the designee extensively and to use the same type of tactics that the plaintiff’s attorney will use in the deposition. Practice interrupting the designee and teach the designee to respectfully stop the interruption. Similarly, the designee should be made aware of various intimidation tactics.  Comments like, “You didn’t answer my question,” “I didn’t ask you about this case, I was just asking generally, just answer my question,” “We will be here all day if you don’t answer my question.”  These intimidating questions should be practiced with the designee so that the designee understands that these tactics are used when the opposing attorney has lost control, and the designee gave a good answer. The designee should know that he or she should continue to answer the same way.

Preparing the corporate designee is a time consuming, difficult undertaking. The designee should be empowered to speak the corporation’s truth so that he or she advocates for the company confidently, and in a way that shows competency as well as compassion.