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What to do if the deponent isn’t saying what you want them to

by Cyclone Covey

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Deposition Tips

Return-arrow-iconQ: So you did see the warning but you did not read it?

A: I would have read the warning if I had seen it.

Q: But you agree that that the warning label is conspicuous?

A:  I'm not sure what that means but I know I did not see it.

Q:  Well the warning covers more than 1/2 of the back of the box, right?

A:  Well I don't have a ruler so I can't tell that for sure?

Q:  You do agree that there is a warning on the back of the box, right?

A:  There is a box on the back that has a lot of legal jargon on it.  I don't know if that qualifies as a 'warning'.

ARRRG!!

We’ve all been in depositions where we’ve been frustrated by what the witness is saying… We try and try to get him/her to say something specific, or a certain way, because it would be just perfect if the witness's language tracked that of the key court opinion that you found! But that doggone witness is being difficult, acting confused, or maybe he/she truly can’t remember.  So now what?

Sometimes the best thing you can do in this situation is to stop asking questions about that issue. Go to something else and come back to the issue later.

What will this do? Sometimes you can break the logjam simply by covering another issue that may relate to the one you’re not getting answers about. Here are three possibilities:

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.









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