Our product liability clients are seeing an uptick in plaintiffs’ requests to depose their corporate representatives. More and more, these requests are directed to clients who rarely, if ever, have had to put a corporate representative up for deposition.
Whom should your client select? It’s a big decision. This individual will be the “face of the franchise,” so to speak; his or her testimony will become binding on the company and potentially be used in litigation for years to come. For best results, consider these key factors:
Key 1. Choose a corporate representative now.
Key 2. Choose someone who can best convey your overall defense themes.
Key 3. Invest the time to adequately prepare him or her.
When to Choose
Start the identification process as soon as the client is sued. Don’t wait until your client is served with a deposition notice. You’ll need as much time as possible to evaluate your possible choices and then properly prepare the person chosen.
Whom to Choose
Although essentially anyone can serve as the corporate designee, selecting the best person to represent the company is paramount to the company’s defense.
Consider the person’s role in the company. Possible candidates include:
- current employees
- former employees
- in-house counsel
- top-level decision makers
- those most knowledgeable on certain product lines
Consider people’s personalities and demeanor. Select someone who will come across well to a jury and who has the fortitude and demeanor to withstand the pressure of a difficult examination by opposing counsel. It’s also important to select someone who has the time to devote to being the corporate representative. It can take hours, if not days, to adequately prepare for deposition and trial testimony.
“[A corporate representative’s] testimony will become binding on the company and potentially be used in litigation for years to come.”
It’s imperative that the person you select be able to counter many jurors’ negative impressions of businesses. [A recent poll found that only 54% of the general population trust businesses in the U.S. (Edelman 2021). Another poll found that 53% of those surveyed believe that large corporations have a negative impact on the U.S. (Pew 2019).]
Also keep in mind that it’s often easier for a juror to like an individual than a company. Your corporate witness must resonate with the jury and be able to effectively communicate the company’s story and defense themes. The witness should be a strong advocate for the company while still coming across as showing empathy for the injured party.
Discuss with your client the defense themes in the case so the two of you can select a corporate representative to match those themes.
- Do you need a historian to walk the jury through corporate background, documents, and past company decisions?
- Someone with a science background may be a better fit if the defense themes revolve around product testing or compliance with warnings and regulations.
- For a small, family-owned business defendant, it can be advantageous to select someone who has devoted his or her life to the company and its customers.
- Sometimes in-house counsel should be used because they know and understand the legal process and are able to navigate aggressive questioning from opposing counsel.
How to Prepare the Person Chosen
Once a corporate representative is selected, adequately prepare the witness for what she or he may encounter during a deposition or at trial. Most corporate witnesses are experts in their field but have little knowledge of the litigation process.
- Impress upon the witness that she or he is testifying on behalf of the corporation and not just about her or his individual knowledge.
- Work with your corporate representative on presentation and tone in order to create jury appeal.
- Invest time reviewing with the witness the company’s history, corporate documents, prior corporate representative deposition testimony, and case-specific facts.
- Give special attention to problem documents or prior testimony you expect opposing counsel to use in their examination.
- Reiterate defense themes and how the witness can incorporate those in her or his testimony.
- Address issues such as attorney-client privilege and objections that may be made during the deposition or trial testimony.
A successful corporate representative deposition depends on the same factors as every other part of a successful product liability defense: organized and detailed planning coupled with thoughtful preparation.
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