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In a deposition, it’s common practice to show a witness a document and give them a moment to review it. Often the deposing lawyer will ask if they’re familiar with that particular document. In most instances, the witness will flip through the document and within 10-15 seconds state whether they’ve seen it before. It’s not a big deal and it helps to get on record that the witness is already familiar with the document. If the witness isn’t familiar, then that’s useful information, as well.
But have you ever had a witness who insists on reading every page of the document to “review it” before responding to any questions? Unfortunately, this tactic is used all too often to stall and delay. Usually, the witness didn’t come up with this trick on their own. Their lawyer likely coached them ahead of time to review every document thoroughly and either implied or expressly stated to the witness that they (the witness) could use this tactic to delay the deposition and reduce the number of meaningful questions you could ask.
Don’t let the witness waste your time. When you realize that the witness plans to waste time in the deposition needlessly reading through every word of every page of a 200-page document, you need to take action. Here are five tips to handle witnesses like this.
Address the situation head on. State on the record how long the witness has taken to review the document and explain that you believe the witness is trying to delay the deposition. Do this for each document that the witness reads for an unduly long period of time. Your statement will likely draw objections from the other attorney (who probably wants the witness to delay), but you need to put the issue on the record in case it becomes an issue for the judge to resolve.
Bring out the absurd. Show the witness documents that they can’t legitimately waste a lot of time on, such as a short email that the witness sent. If the witness insists on spending five minutes reading the document, let them. Then state on the record how long it took. That will help with the judge later. If you have video then it’s even better. Watching someone pretend to read for five minutes is painful and will aggravate the judge or jury.
Try to focus the witness on specific pages. Expressly tell the witness you only want them to focus on the pages or sections you care about. Direct them to the page you want them to see. If you’re using paper exhibits, turn to the relevant page before you hand the document to the witness. If you’re using paperless deposition exhibits (such as AgileLaw’s) then you should use the software’s screen synchronization feature to advance to the page you want the witness to see.
See if you can find some common ground about what the witness knows. You’re not required to show the witness a document that they’ve seen before. So if the witness insists they’ve read every word to “verify” that it’s a document that they’ve seen before, then skip that question. Unless the issue relates to the authenticity of the document, you don’t necessarily have to get the witness to state that they know about the document or that the document is complete. Most of the time your questions only relate to a specific part of document. You can stipulate that unless you expressly ask you understand that the witness is not conceding that the entire document is in its complete state. Often a witness in answering the questions will “forget” that they are supposed to not know if they’ve seen the document before.
Use a break. Another tactic is to tell the witness you’re going to give them five documents and you want them to take the lunch break to study the documents in detail. If they have had an hour to review the documents during lunch, then they can’t legitimately argue they need more time to read the documents while on the record. Of course, you lose the element of surprise here, so this decision is a judgment call.
Ultimately, when a witness attempts to slow the deposition to a crawl by spending an inordinate amount of time reviewing deposition documents, they’re trying to control the deposition. You have to fight back and take control. If the witness refuses to cooperate, then make sure you give them enough rope to hang themselves when you attack their credibility later in the litigation.
About the Author
Cyclone Covey is an entrepreneur and active lawyer serving as General Counsel for four companies. Prior to joining his companies, he practiced complex commercial construction litigation in Atlanta, Georgia, with Griffin, Cochrane & Marshall, now a part of Sutherland. He regularly writes for AgileLaw, the leading provider of paperless depositions.
©2015 AgileLaw. This article originally appeared on the AgileLaw Blog and was reprinted with permission.