0 Comments Published on January 12th, 2015 by Cyclone Covey
1. Get related facts...In one case I had we spent a significant amount of time talking to an employee of the opposing party. The employee clearly had been coached to say little or nothing about the owner of the company. The company owner, after all, was paying the opposing lawyer's fees so it became very clear that I would not get very far with questions that related to the owner. So I turned to the employee's coworkers and immediate supervisor. Instantly the veil of silence was lifted and I began to get useful information. And though the employee remained very guarded about questions relating to the owner, he eventually had to acknowledge the owner's involvement in certain key meetings because of admissions that he had made when discussing the other company employees.
2. Wear the witness down...Other times by the time you come back to the issue, you’ve simply worn the witness down mentally. Because they’re slightly more fatigued, they’ll be a little more willing to give you the answers that you need for effective testimony. A good example here is when a colleague of mine conducted a deposition of a physician in a very difficult and complex medical malpractice case. After about 5 hours the physician in the deposition became noticeably tired and stopped attempting to fight over the wording of every question. What had been a relatively unproductive deposition to that point suddenly became very useful and ultimately helped the plaintiff negotiate a significant settlement. The point is that you cannot give up and you have to be willing to return to the issue later, particularly if the witness becomes tired or more agreeable.
3. Give them time to remember...Finally, if the witness has in fact forgotten something, they might remember it when you ask about it later. Or they might forget that they were supposed to have "forgotten"! Of course this isn’t proven to work every time, but it sure beats asking the same question 5,000 different ways and getting nowhere.