Can this witness be saved from the “Magic List”?

I had been waiting in the conference room for an hour, looking at a beautiful view of the mountains and hoping for the best. The attorney – who I had met only over the phone but came highly recommended by my good client, Charlie – had popped his head in after the receptionist seated me at 9 a.m., purring, “He’s here, but I just want to go over a few things with him first.”

I cooled my heels knowing the attorney was doing one of two things with the witness: Discussing something that he didn’t want me to know (good news for me – this is a guy who has a healthy respect for privilege) or he was giving the witness what I have come to call The Magic List lecture of do’s and don’ts for deposition. I call these lists magic because lawyers believe that by telling witnesses all these things in a lecture format, it is like sprinkling the fairy dust of knowledge on their heads. The witness will miraculously emerge with The Magic List fully understood, integrated, and ready for the battle ahead.

I have yet to meet a lawyer who does not have a Magic List for deposition. And trial. And arbitration. Magic List lectures sound something like this: “We are now getting ready for your deposition. A deposition is a….blah blah blah…don’t answer if you don’t understand the…blah blah blah…take your time before answering the…blah blah blah…for God’s sake don’t volunteer…blah blah blah…if you don’t know, if you don’t remember just…blah blah blah…one time I had a witness who didn’t listen to me – of course, he is dead now and his wife is in a mental hospital and his children are on welfare…blah blah blah…don’t worry, I’ll be right be- side you the whole time.”

If this attorney was giving The Magic List lecture, I was happy to be out of the room. It is really painful to watch a lawyer hammer a perfectly nice human being into a terrified lump who is bound to fail. Not that most people aren’t going to pick up something from a lecture, but no one really learns best this way – including attorneys. Attorneys were taught to lecture by law professors, mentors, and senior partners who lectured to them, and so they lecture.

To read more about how this witness was saved and useful tactics to use to prepare a witness for a deposition or trial, Visit

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