Overlearn Your Deposition

Ken Broda-Bahm | Holland & Hart LLP | February 13, 2017

For the witness preparing for trial testimony, there is one common piece of advice: Study your deposition. In preparation sessions, I will always stress this advice, noting that a thorough knowledge of the deposition is both your sword and shield during trial testimony. Not only does it avoid or blunt the effects of impeachment, it also helps in letting the witness know exactly where opposing counsel is going and why. Of course, most witnesses will review their deposition before trial. But, in my experience at least, fewer witnesses will study that deposition enough. Just having a copy is not enough. Just skimming through it is not enough. Even reading it cover to cover is not enough. Instead, a truly prepared witness will have read it more than once, and will have read it actively in order to have an understanding of the topics covered, the ways the key questions were phrased, and the precise language of the most important answers. When the witness knows the prior testimony at that level, cross-examination is a lot more difficult for opposing counsel.

The problem is that some witnesses, probably most, will stop reviewing the deposition once they feel like they are generally familiar with it. The research, however, shows that they should keep going. A new study (Shibata et al., 2017) focuses on “overlearning,” or “the continued training of a skill after performance improvement has plateaued.” The result is that continuing to study, even after you have that “I’ve got it” feeling, yields some definite benefits. Focused on a learning task, the study found that spending even 20 minutes past the plateau point in learning, lead to significantly greater retention of information. The thinking is that, after we learn something, that knowledge is initially “plastic” rather than “stabilized.” That means that, even though it is well understood at the moment, it is vulnerable and in danger of being overwritten, in effect, by new knowledge. Overlearning seems to combat that vulnerability by locking in the information. According to one of the study authors, Professor Takeo Watanable, “These results suggest that just a short period of overlearning drastically changes a post-training plastic and unstable [learning state] to a hyperstabilized state that is resilient against, and even disrupts, new learning.” So extra review is good advice for anyone trying to learn new information. In this post, I will share a few recommendations for witnesses seeking to know their deposition testimony prior to being examined at trial.

Here are three pieces of advice I think witnesses should take to heart when it comes to learning their depositions.

Review Actively, Not Passively

The advice I hear most often from attorneys is, “Here is a copy of your deposition, make sure you review it.” But if the witness just passively reads it, the way they might read a novel, they are missing out on most of the benefits. Instead of just reading it, the witness ought to actively engage with it. Use sticky tabs to identify all of the topics covered. Make notes on which topics proved to be most troublesome, and therefore most likely to be covered in cross. When you see a key answer that is likely to matter in trial testimony, highlight both the exact wording of the question, and the wording of your answer. Understanding the content at that level provides you with a powerful foundation for not just making it through cross-examination but excelling at it.

Keep Reviewing Even After You Have It

The witness who dreads their upcoming time on the stand, might not read their deposition out of simple psychological avoidance, and that is a bad thing. The witness who truly wants to do well needs to prepare. But preparing means continuing to review, even after the witness is generally familiar with the transcript. The research makes a good point. Continued review, even after one has reached the point of general knowledge, is like adding a second coat of paint: It makes the knowledge stronger and more likely to last.

Take a Break After Your Review

New knowledge is also better protected if you give it time to set. It is like waiting for the paint to dry. That is why information learned just prior to going to bed is more likely to be remembered — because for awhile at least, you are unlikely to learn anything new that would risk overwriting what you just learned. So, review your deposition before going to bed, or take a break after reviewing the deposition. Instead of jumping into more work, or reading something else, do some exercise or listen to music.

Ultimately, it is tough to do too much preparation work in this area. The advice witnesses should be receiving is not just, “Learn your deposition,” but “Overlearn your deposition.”

Leave a Reply