Regardless of the experience level of the witness, the “keep-it-simple” maxim has never been more appropriately applied than to preparing witnesses for deposition. Regardless of the witness’ experience level the most successful deposition will result from strict adherence to a simple set of skills and rules. My work with witnesses since 1989 has taught me those skills and rules are as follows:
Tunno’s Golden Rules
- Provide the Shortest Possible Truthful Response, or as one client dubbed it, “spitter.”
- Make opposing counsel do his job.
- Make him be precise – not vague. Don’t answer a better question than was asked.
- Control the pace.
- Answer one question at a time.
- Understand that the witness is the only one who is sworn to tell the truth.
Most important skill – listening.
Listening is the most important skill, by far. Only by listening carefully through the entire question will the witness be able to answer for himself the following questions:
Questions in the pause:
- Did I fully understand the question?
- Is the question succinct?
- Do I know the answer?
All three questions are evaluated by the witness during a short pause following the question and, if the witness has been listening carefully, a short pause is all it takes. If the answer to all three questions is “yes,” then the attorney is entitled to the truthful answer, the “spitter” answer.
If a short pause is insufficient for the witness to answer those three questions, there may be something wrong with the question, triggering an automatic, or default, response from the witness. That automatic response can range from a simple repeat of the question to clarification of some aspect of the question.
A witness’s inability to answer all three questions may be a result of a failure to concentrate (listen). If fatigue is the likely cause, a break is in order. If it’s only a temporary condition, a simple request for a repeat of the question is enough.
There’s a card game called “Go Fish.” Maybe you’ve played it. It’s basically a variation on Gin Rummy. I see that it’s played now with a regular deck of cards or characters designed for kids, but not the characters in the 50’s when I was a kid. My favorite was “Greasy Grimes,” an auto mechanic. He’s gone. Too bad.
You try to get multiples of one type of card by asking another player if he/she has one (Yes, the game requires honesty – maybe that’ why it’s a kids game.). If they do, they give you their card. If they don’t, they say “go fish.”
Deposition answers are the same. All answers are without explanation. If the answer is “I don’t know,” or any answer that begs an explanation, it is not the witness’ job to provide it without additional questions.
More about the “Golden Rules”
- The shortest possible truthful response is key.
A. The attorney is responsible for asking clear, succinct questions. A question that requires a long answer will likely violate that requirement.
B. The witness is responsible for answering within the scope of the question. A long answer almost always exceeds that responsibility. I tell witnesses that, not only is a long answer not responsive to the question, but the longer a witness talks, the closer his foot gets to his mouth.
- Job of opposing counsel. See 1A above and the “Go Fish” explanation.
- Pace control – Why is it so important?
A. A fast pace leads to inaccurate answers because the critical step of listening carefully is much harder to employ.
B. A fast pace tends to reduce the length of the pause between questions, a critical period for the witness.
C. The attorney knows what questions he or she is going to ask and is experienced in the process. The witness is not.
D. The witness is sworn to tell the truth, not the attorney. A slower pace is more conducive to telling the truth than a fast one.
- The one-question-at-a-time rule keeps the witness focused on the question at hand.
A. The answer to the question at hand should never be affected by what a subsequent question might be.
B. As long as the witness is always telling the truth, there should never be a need to think ahead.
C. Thinking ahead reduces the witness’ chances of answering truthfully to the question at hand.
- Being the only one sworn to tell the truth gives the witness rights and power.
A. The fact that the witness is the only person under oath provides the witness with the “license” to exercise the needed control over the process in order to tell the truth.
Additional pointers – Tunno’s Dozen KISS’s
- The pause discussed under Listening, allows friendly counsel to react to the question if necessary and is an important tool in controlling the pace. I liken it to a game of catch. Every time the ball is thrown to you, you now have control over when you throw it back and how fast. The other player may want to speed things up, but he only has control half the time.
- Don’t interpret the question. If a question requires interpretation, it violates Golden Rule #2.
- Don’t react to the questioner, just the question. The tone and style of the attorney may lull the witness into a false sense of the importance of the question at hand. It may relax the witness to the point where he/she is not listening carefully and is generally not focused.
- Depositions are stressful, but they are not an endurance test. Ask for a break when needed. Truthful responses require that a witness is not unduly affected by stress.
- If an answer is to have multiple parts, provide them one at a time, requiring as many questions as needed to complete all the parts.
- If the witness is struggling to answer a question, there is probably something wrong with the question.
- Don’t relax. Lean forward against the table, not back in the chair. Don’t fold your arms.
- If it helps you to look at a blank wall, for example, in order to concentrate on your answer, or because opposing counsel annoys you, do it.
- If there is any doubt about the answer to a question, ALWAYS ask for it to be repeated, or made more precise, as the case may be. This is important to providing a truthful answer, and is a pace control tool.
- While a question may ask for a “yes” or “no” answer, the truth may be neither. The truth may include a qualifier, such as; “That is only partly true,” or “That is not usually true.” There are many possible alternatives. The qualifier allows the witness to provide the more complete, truthful answer at some point in the future, either during the deposition itself, or later at trial. Consistent with this tip, the witness should not give answers that are absolute, unless absolute is absolutely
- Depositions are a memory test, but the witness doesn’t score more points with a great memory. If the truth is “I don’t remember,” then that’s that. No amount of cajoling by opposing counsel should change that. On the other hand, if counsel asks “Is there anything that would refresh your memory,” the truth may be “yes,” but understand, there is a difference between would and might.
- Opposing counsel is entitled to every fact known to the witness, BUT he must ask the right questions and in the right way. If the whole truth doesn’t come out in the deposition, let it be because the attorney didn’t do his or her job properly. Trial will then be the witness’ chance to tell the whole truth.
How best to remember these points:
- Write the rules. One of the best ways to remember any list of pointers is to write them down. The physical act of writing them helps the brain to remember them. Then test your memory of the list. That will put the rules into your own words, making them more memorable.
- Practice using them in a realistic role playing, mock deposition session.
Check out my book, Fixing the Engine of Justice: Diagnosis and Repair of Our Jury System. Select the “Jury Book” tab at the top.