What to do when the witness starts squirming

by Cyclone Covey


Deposition Tips

download (9)You need to be on alert during the deposition for the witness using “wiggle words” or attempts to avoid directly answering a question. This happens frequently when the witness is presented with an uncomfortable situation or question. For example, you may ask them a simple ‘yes’ or ‘no’ question, and they know they need to say ‘yes’ but saying ‘yes’ by itself makes them look bad. So they’ll say something like ‘it’s possible’ or ‘maybe’ or ‘I think so but I’m not really sure’ or similar equivocal answer.

You MUST follow-up when they give answers like that, particularly when it’s clear that they’re trying hard to avoid admitting a harmful fact. The reason this is important is because if the witness waivers, and you have to include that testimony in a motion brief, that will definitely affect the court’s view of that testimony. A definite “yes” or “no” is significantly more powerful than ‘maybe’, ‘I think so but I’m not sure’ or ‘possibly.’

In my previous post, I talked about coming back to the same issue later when a witness wasn’t giving you what you needed. This is not the same as follow-up questions. Coming back to an issue might work well when the exact phrasing isn’t to your liking…but when the witness is squirming, you can’t let up. Go for the upper cut!

Here’s an example of a litigator doing it wrong and allowing the witness to squirm out of your tough questions.

Q:  So you review every proposal before it is sent to the customer?

A:  That’s the way it is supposed to work in theory.

Q:   You reviewed this proposal, Exhibit 15, before it was sent to your client, didn’t you?

A:  I might have.

When you get one of these answers, if you move on and accept their weak answers, you’ve made a huge mistake! Don’t let up! Here’s how to do it correctly.

Q:  So you review every proposal before it is sent to the customer?

A:  That’s the way it is supposed to work in theory.

Q: Well you just testified that your department’s procedure is that you review every proposal. Right?

A:  Yes.

Q:  So do you follow that procedure and review every proposal or not?

A:  Yes.

Q:  Yes you do review every proposal before it is sent out?

A:  Yes.

Q:  So you reviewed this proposal, Exhibit 15, before it was sent to to your client, didn’t you?

A:  I might have.

Q:  You just testified that you review every proposal. Did you review Exhibit 15 before it was sent?

A:  Yes I did.

Sometimes the testimony won’t be so easy as the examples I gave above. If the witness says they’re not really sure then talk to them about what the other possibilities are. Usually when someone equivocates to avoid directly admitting damning evidence they will acquiesce to whatever you’re asking when you challenge them. This acquiescence occurs because the witness does not want to spend more time discussing an uncomfortable or unpleasant subject.

The correct way is definitely more work, but it results in more useful testimony. The first example above is barely useful. The extra work is well worth it because it affects the transcript, which is what you will use later in your case. The court is not there during your deposition and the judge does not see the overall dynamic of what’s going on. The court sees only a very small subset of the deposition so you’ve got to follow up to make the transcript straightforward.


Douglas K Smith MD

Posted on 2015-01-25 01:29:49

Very nice description. As a medical expert witness, I have certainly experienced examples of both approaches you describe.

Leave a Reply

Your email address will not be published. Required fields are marked *