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If a witness has been adequately prepared for his deposition he knows that he is not going to be able tell his side of the story. Instead, it is a lot like playing a game of Twenty-Questions. One person asks questions and the other person answers questions. The person answering does not need to volunteer any information that is not a part of the question. He must answer honestly but it is the questioner’s job to ask the right questions. If she does not ask the right questions, then she loses the game.
Depositions are the process by which you find out what a witness has to say, lock him into his answers, and determine how he will hold up at trial. Sounds simple enough. Still, more often than not, the deposition ends with stones left unturned.
For any particular topic the questions should start off broad and then get more and more specific. There are a couple reasons. First, you want to ensure you are not making any assumptions about what a witness has to say. Second, you will get more information from the witness by asking broad questions first and then narrowing your focus. For example, if you ask the witness, “What exactly did you tell the doctor?” the witness can probably answer, “I don’t remember.” However, if you cast a wider net to get the gist of the conversation first, and then start nailing the witness down to specifics, you will walk away from the deposition with much more information.
Another common mistake is failing to exhaust the witness’s answers before moving on. Asking, “Who was there?” is only the first part of the question. Once the witness stops listing names your next question should be, “Was there anyone else?” Otherwise, you run the risk of leaving the deposition with incomplete information. If that missing information emerges at trial, the witness will be able to claim that you did not let him finish (and the transcript will appear to support the witness). Sometimes witnesses simply forget a portion of the truth. Other times the omission is more sinister. But regardless of whether the information was omitted intentionally or unintentionally, by asking, “What else?” or “Do you remember anything else?” you will get a more complete picture of the witness’s position and reduce the likelihood of surprises at trial.
Only after completely boxing the witness into his answer should you move on to the next topic. The reason this is more difficult than it sounds is because new topics emerge during a deposition. That leaves you with a choice. Do you stick with the same line of questions and address the new topic after exhausting the witness’s answers on the original issue or do you pursue the new topic right away? In the end, it really doesn’t matter. What matters is that you cover both areas. If you have all of your questions written out, it will probably be easier to mark your spot on the list and pursue the new topic first. That way you can easily pick up where you left off. However, if you are not working from a list of questions, it is probably easier to make a note of the new topic and then ask the witness about it after you have finished covering the original issue.
Some experienced expert witnesses are very good at imbedding irrelevant information into their answers in hopes of getting the attorney off track. You will know this is happening when an expert witness gives a long, drawn out explanation using official sounding scientific terminology that does not seem to fit together very well. Unable to understand it (and perhaps too embarrassed to admit it, the witness is hoping that you will decide to move on and try to make sense of it from the transcript. But in doing so you are giving the expert a great deal of room to change his opinion later. Therefore, to lock him into his opinions you should break his answer down into small parts and make sure you understand each part.
Even if you do understand a very long statement by a witness, it is a good idea to get the short version as well. If nothing else, on paper the expert’s answer may cover several continuous pages in the transcript. If you are forced to use the transcript at trial, the sheer length of the statement may diminish its effectiveness. By getting the summary you can make sure the jury will be able to follow the statement made during the deposition. You can usually do that by paraphrasing what the witness said and then ask a closed-ended question to determine if the witness agrees with your summary. For example, “So would it be correct to say….”
Finally, witnesses are sometimes instructed to finish their answers with, “at this time,” as in, “That is all I can remember at this time.” Doing so provides an avenue by which he can alter his testimony at trial. Therefore, any time a witness uses this phrase, you should ask the witness what, if anything, might change his memory for the event. If there are certain documents he may review at a later time, then that information should be on the record. Better yet, if possible, you should have the witness review those records before concluding the deposition to determine if his testimony will change. The idea is to take away any wiggle room he has for changing his testimony.
Videotaping of depositions is becoming more and more common. Do not allow the camera to be zoomed in and out during a deposition. Doing so will draw undue attention to that portion of the testimony. Also make sure the witness will not be distracted by anything such as people in the hall, noise coming from outside, etc. Some attorneys will strategically select a room, or position of the witness’s chair, specifically because the witness will be distracted by things going on around him. If the deposition is being recorded on video, your witness’s credibility ratings will decrease because he looks distracted or confused. Anyone watching the video won’t know that people keep looking into the room through the window in the door.
About the Author
Brad Bradshaw, Ph.D. is a litigation consultant based in Nashville, Tennessee. Dr. Bradshaw helps attorneys prepare for arbitration and trial, anywhere in the country. For more information please visit www.bradshawlitigation.com or call (615) 739-6553.