Gotcha! That’s a trick question… because nearly every witness you depose or cross examine will be a difficult witness. Your chances of encountering an “easy” witness that the other side presents are probably only slightly better than winning the lottery. After all, if the other side is going to rely on this witness then it is because that witness is going to say something that will hurt your case. So 99% or more of your depositions will be against difficult witnesses. Nevertheless, this post is not going to cover how to depose nearly every witness that you might encounter. Instead I’m going to focus on a small subset: witnesses who are combative, unresponsive, overly forgetful, purposefully slow, and generally intent on making the deposition go nowhere.
Ten tips to remember when you encounter the difficult witness
1. Don’t get caught up in your outline
When you discover that a witness is not going to follow your line of questions you have to be willing to vary from your plan. What should be a single question and answer might turn into 30 minutes of back-and-forth. Once you discover that you are going to have a difficult time you have to be willing to adopt a different game plan. Otherwise you won’t finish and the resulting deposition won’t be much good to you.
2. It’s all about credibility
Remember is that the witness’s credibility is on the line. If the witness is intent on showing his backside then such behavior will not sit well with the judge and jury. Bill Gates’s deposition is a great example. In the Microsoft antitrust trial Mr. Gates argued with his deposing lawyer over very simple things, such as the definition of “concerned.” This behavior crushed his credibility in the eyes of the judge. So if a witness wants to argue with you over trivial issues or is clearly evading your questions don’t get frustrated and refrain from getting into an argument. Instead remember that someone else will be reading the transcript or watching the video and they won’t react kindly to a sparring, difficult witness.
3. Remain calm
If you become overly aggressive then the result is that you’ll diminish the perception that the witness was being difficult. Instead it will appear to the judge and jury that the deposition simply devolved into an unproductive argument. If the witness tries to bait you resist the urge to respond in kind. In fact the more calm you remain the more clearly the fact-finder will see that the witness is not cooperating, which will help you in the long run.
4. Bring out the absurd
Often witnesses become so absorbed in verbal sparring they don’t realize that they are destroying their own credibility. A great example of this is in a case where the witness spent over 10 minutes questioning the definition of “copier”. When a witness can’t remember anything, or insists on defining every word that you use, milk it. Ask thirty or forty questions in a row to which you expect to get “I don’t recall.” Take the time to let the witness show extreme puzzlement over the definition of “green light”. Once the fact-finder starts laughing at the absurdity of the situation then you will have scored more points than any other possible approach.
5. Remember the transcript
Remember that the witness needs to look bad on paper. That’s easy when the witness says “I don’t recall” repeatedly, but it is harder if the witness is intentionally very slow. Make sure you state on the record when the witness is intentionally moving slowly if they are taking an inordinately long time to review a document. Do the same for any nonverbal actions that the witness is doing that are hostile or offensive.
6. Think Globally
In addition to killing the witness’s credibility, remember that this witness’s testimony will be reviewed in the context of other witnesses. Therefore if the witness takes a position that is even slightly inconsistent with other witnesses on the same side take advantage. Encourage the witness to expound on that point. Then use those inconsistent positions to your advantage.
7. Look for common ground
Sometimes killing credibility is not enough. You have to get some critical admission from the witness. In this case you have to back up and find a topic over which the witness won’t fight you. When you do this you’re trying to get the witness out of combat mode or forget mode. If someone doesn’t recall anything find out what they do recall; what notes they may have to help them recall; what they might be able to do to aid in their recall; etc. If someone disagrees with everything you say keep backing up until you find something, no matter how trivial, to which they will agree. Try to work from that common ground. You’re still very unlikely to get what you need, but you have to try to break the logjam somehow.
8. Give the witness the global context
Sometimes it helps to ask the witness if they are aware that the judge is going to see how they have acted. Make them realize that their behavior and their testimony will be front and center in your next brief. I suggest you do this only after a witness has made a fool of himself in the deposition.
9. Discuss the issue with opposing counsel
Taking up the issue with opposing counsel can be risky since it may allow the lawyer to prompt the witness or support the witness’s behavior. But if you can get the opposing counsel to acknowledge that her witness is being obstinate then it can help. If the witness realizes that his advocate is not supporting his behavior then he might change his tune.
10. Don’t waste your time
End the deposition once you have gotten whatever testimony you can get from the witness. It’s generally a good idea to note on the record that you’re ending the deposition early because of the witness’s failure to remember or cooperate. That will help you in several ways. First, you’re saving your time and your client’s money. Second, in the event that you need to ask for another opportunity to depose the witness, for example after a motion to compel, you still have time remaining. Many judges strictly adhere to deposition time limits, and you don’t want a hollow victory where a judge finds that the witness was uncooperative but refuses you another deposition because you spent all your available time sparring with the witness.