Witnesses are Crucial Players in Franchise Trials, Attorneys Say
If you’re ever called as a witness in a franchise lawsuit, be prepared for an intense experience, according to two attorneys who litigate for a living.
Jeffrey Fillerup, with McKenna Long & Aldridge in San Francisco, and Ron Gardner, Dady & Gardner in Minneapolis, told the American Bar Association Forum on Franchising they take opposite approaches when preparing witnesses for depositions.
Fillerup favors a day-long event, in which the first couple of hours are spent explaining all the details of the deposition process, and then he “tells the witness everything they need to do when I say anything,” he says. “Then I tell them what lawyers’ tricks are when they ask questions.”
He spends the afternoon doing a mock deposition, in which he asks hard questions, playing the role of the opposing attorney. “It’s important for the witness to experience being on the hot seat,” Fillerup says.
Gardner has “an exact opposite view,” he told the crowd. “I’m afraid of prepping them on the wrong thing.” So rather than drilling on specifics, Gardner will spend an hour or two over dinner the night before the deposition, talking about broad themes. “I feel I’ve prepared them better if I’ve drilled into them our story, so no matter what smoking-gun document is presented, they’re ready.”
Either way, witnesses play a crucial role in a trial, even causing Fillerup, for example, to abandon a jury trial recently and seek a settlement when his rock-solid witnesses changed employers and were no longer available to him.
“When you are going to trial, all that matters is witnesses. It’s all I care about,” he says. The American Bar Association’s 37th annual Forum on Franchising was October 15-17 in Seattle.