3 ways to make the witness go “on tilt” in a deposition

BYCyclone Covey2 commentsDeposition Tips


Make the witness go on tilt

A good litigator is always trying to get in the head of the opponent. Like a great poker player, you not only want to know what the deponent is thinking, you want to get inside their head. In poker terms, you want them “on tilt.” When a poker player (or deponent) is “on tilt,” they can’t think straight. They may get angry, or frustrated, and start acting recklessly.  You don’t want to have the witness become comfortable. You want them to be uncomfortable, because they’re going to be more likely to agree with you and be cooperative. They’ll want to get out of their uncomfortable situation by ending the deposition.

Don’t be predictable

So how do you make the deponent “on tilt?”  I’m not talking about making it hot in the room or being rude with them. One way you can do it is by not following a predicable order of questioning during the deposition. When you ask a set of chronological or linked questions, you allow the witness to get comfortable with what’s coming next. They anticipate questions, understand where you’re going, and have an easier time giving the rehearsed answers. When they don’t know what’s coming next, they become mentally uncomfortable. If you follow a chronological, or similar predictable order, then it’s much easier for them to keep their story straight, even if it’s not completely true.  Through proper planning, you’ll be able to go from one topic to another, back to another, back to the original topic, effortlessly. You’ll have your outline and documents ready. The witness doesn’t know this, and will have a harder time keeping their story straight.

Wear the witness down

Another technique, which I discuss in this post, is to wear the witness down. Deposition stamina is something that few witnesses have, so if you can bide your time and circle around the key topics enough then eventually your witness will be worn down and might finally give ground on the key point. It’s the same effect as a long mediation. By the end of the day people are more willing to give in because they’re tired and want to be finished.

Cover an embarassing topic

A final technique is to make sure you cover topics that are either personally embarrassing for the witness or make them upset. This is a fine line because the discussion needs to be related to something relevant to the case. If you’re in a breach of contract case, for example, then a discussion about the witness’s infidelity probably isn’t relevant and will draw objections. But if you have examples where the witness made mistakes in their capacity as a key employee for the opposing party then raising those mistakes will make the witness uncomfortable and certainly less likely to want to battle with you on other points.

Whatever your method, if you discover that you can keep the witness off balance, cover topics that they don’t like discussing, and wear them down, then you’ll likely get a lot of good admissions to support your case. Remember this concept and it will pay big dividends in your depositions.


Saretta Ramdial
Jun 8, 2015 at 09:49am

Hi Dave – Thanks for the comment. You definitely sound prepared, which is great. Remember that just previewing what you’re going to say is not the only purpose of a deposition. Good lawyers will use the deposition to try to poke holes in your conclusions as an expert. You’re right that most of the transcript doesn’t get used but it’s the 1% that is used that makes all the difference. So you have to be “on” all the time. It sounds like you come to the deposition well-prepared, which should make your clients happy.

Dave Ross
Jun 6, 2015 at 02:52pm

I love long, tedious depositions. The longer, the better. I exercise and eat healthy, get plenty of sleep – just so that I can outlast the most challenging attorneys. I also come to depositions well prepared. That doesn’t mean I’m invulnerable – far from it. But I will know my subject, facts, analyses and opinions better than you do. So I encourage you to test the limits of my comfort, my patience and my acuity.

If you only want a preview of my trial testimony, including all of the facts, documents, research, analysis and opinions I have to offer (collectively “discovery”), we can handle that fairly quickly and efficiently. But if your preference is to spend your client’s funds trying to outwit or outlast me, I’m game. Keep in mind that I charge $500/hour for my depo time (peanuts compared to the dollars at issue, I know).

Of course, many clients love an aggressive attorney, not recognizing that 99.9% of deposition transcripts never makes it to trial. They appreciate the gladiatorial effort, keeping track of who’s scoring the most points. And the longer it lasts, the more $ in the pockets of the attorneys, too!

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