Do you have “Silence” in your deposition outline?

BYSid Allen0 commentsDeposition Tips

Wilde Salome Al Pacino

In my first job, I had a new co-worker Jim that was still trying to figure out the ropes. My boss would ask him a simple question, such as, “Where did you go for lunch Jim?”

Although Jim answered truthfully and immediately, my boss would just stare at him, silently. My friend got nervous, and thinking he had done something wrong, would start trying to defend himself. Unfortunately, he didn’t know what he’d done wrong, so he’d start spilling the beans:

“I had to leave early because I was meeting a friend and I didn’t want them to wait…”


“I’m still working on the Miller report, I know its late but some of the variables changed…”


At this point Jim was really squirming, and we usually ended the interrogation by all laughing aloud at his obvious discomfort. My boss did this as a joke, and even said once, “Jim I don’t have to say anything or even suspect you’ve done anything wrong, but just stare at you and you’ll confess to murdering Mother Teresa!”

Even though it was nothing more than office humor, there are some valuable lessons here.

1. People don’t like silence!

Psychologists and communication experts say that when you’re in a middle of conversation and there’s suddenly silence, often what’s termed an awkward silence, people have feelings of rejection and negative emotions. This is one reason my friend Jim was so uncomfortable: he subconsciously felt negative. A gap in conversation will cause a literal emotional gap that people need to fill. 

2. People act differently when an authority figure is staring at them.

The Hawthorne effect was first discovered in an experiment that showed that people work harder when they believe they’re being observed. But more generally, its implications are that people will “modify an aspect of their behavior in response to their awareness of being observed.” Most people slow down reflexively when they see a cop car. With regards to interrogatories, if you’re sitting in a room of silence with all eyes on you, the urge to open your mouth is often overwhelming. 

So what does this have to do with law? Everything!

In depositions, use silence to devastating affect.

Here’s how:

Generally in a deposition you get into a rhythm where you ask a question and the witness answers. You go back and forth and it moves pretty quickly. That rhythm is good because

    a) it saves time
    b) it can get a witness into a more cooperative mode as they get comfortable answering your questions

But what about the knowledge that people don’t like silence and expectant stares from authority figures? You must use that to your advantage!

So ask a question, get an answer, ask a question, get an answer : get the witness into a nice rhythm and cadence. Then, ask your main question, let the witness answer, and when they’re finished… just wait… Many times the witness will expect you to ask another question, but if you don’t and you just look at the witness expectantly, the witness will think that maybe they need to continue to answer. A lot of times the witness will continue to volunteer information or just continue talking, because the silence seems so uncomfortable for them. If you’re able to get a witness to volunteer information that they shouldn’t have because you paused for an extra 15 or 20 seconds, then you’re getting something very valuable.  Another thing to consider is that your pause is not indicated on the transcript. So it doesn’t hurt you at all to wait to see if the witness has something else to add that might benefit your case.

So here are the steps to making silence a devastating weapon in your depositions:

  1. Include “silence” in your deposition outline in critical areas
  2. Build a cadence of questions and answers
  3. Work towards a question that requires details
  4. Pause
  5. Let the silence become uncomfortably long
  6. Look expectantly at the witness

To see this lesson applied in a mock deposition, watch the video at this link: Silence Is Golden.

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