Regardless of the experience level of the witness, the \u201ckeep-it-simple\u201d maxim has never been more appropriately applied than to preparing witnesses for deposition.\u00a0 Regardless of the witness\u2019 experience level the most successful deposition will result from strict adherence to a simple set of skills and rules.\u00a0 My work with witnesses since 1989 has taught me those skills and rules are as follows:<\/p>\n
Tunno\u2019s Golden Rules<\/strong><\/p>\n Most important skill – listening.<\/strong><\/p>\n Listening is the most important skill, by far.\u00a0 Only by listening carefully through the entire question will the witness be able to answer for himself the following questions:<\/p>\n Questions in the pause:<\/strong><\/p>\n 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.\u00a0 If the answer to all three questions is \u201cyes,\u201d then the attorney is entitled to the truthful answer, the \u201cspitter\u201d answer.<\/p>\n 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.\u00a0 That automatic response can range from a simple repeat of the question to clarification of some aspect of the question.<\/p>\n A witness\u2019s inability to answer all three questions may be a result of a failure to concentrate (listen).\u00a0 \u00a0\u00a0If fatigue is the likely cause, a break is in order.\u00a0 If it\u2019s only a temporary condition, a simple request for a repeat of the question is enough.<\/p>\n \u201cGo fish\u201d<\/strong><\/p>\n There\u2019s a card game called \u201cGo Fish.\u201d\u00a0 Maybe you\u2019ve played it.\u00a0 It\u2019s basically a variation on Gin Rummy.\u00a0 I see that it\u2019s played now with a regular deck of cards or characters designed for kids, but not the characters in the 50\u2019s when I was a kid.\u00a0 My favorite was \u201cGreasy Grimes,\u201d an auto mechanic.\u00a0 He\u2019s gone.\u00a0 Too bad.<\/p>\n You try to get multiples of one type of card by asking another player if he\/she has one (Yes, the game requires honesty \u2013 maybe that\u2019 why it\u2019s a kids game.).\u00a0 If they do, they give you their card.\u00a0 If they don\u2019t, they say \u201cgo fish.\u201d<\/p>\n Deposition answers are the same.\u00a0 All answers are without explanation.\u00a0 If the answer is \u201cI don\u2019t know,\u201d or any answer that begs an explanation, it is not the witness\u2019 job to provide it without additional questions.<\/p>\n More about the \u201cGolden Rules\u201d<\/strong><\/p>\n A. \u00a0The attorney is responsible for asking clear, succinct questions. A question that requires a long answer will likely violate that requirement.<\/p>\n B. \u00a0The witness is responsible for answering within the scope of the question. A long answer almost always exceeds that responsibility.\u00a0 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.<\/p>\n A. \u00a0A fast pace leads to inaccurate answers because the critical step of listening carefully is much harder to employ.<\/p>\n B. \u00a0A fast pace tends to reduce the length of the pause between questions, a critical period for the witness.<\/p>\n C. \u00a0The attorney knows what questions he or she is going to ask and is experienced in the process. The witness is not.<\/p>\n D. \u00a0The witness is sworn to tell the truth, not the attorney. A slower pace is more conducive to telling the truth than a fast one.<\/p>\n A. \u00a0The answer to the question at hand should never be affected by what a subsequent question might be.<\/p>\n B. \u00a0As long as the witness is always telling the truth, there should never be a need to think ahead.<\/p>\n C. \u00a0Thinking ahead reduces the witness\u2019 chances of answering truthfully to the question at hand.<\/p>\n A. \u00a0The fact that the witness is the only person under oath provides the witness with the \u201clicense\u201d to exercise the needed control over the process in order to tell the truth.<\/p>\n Additional pointers \u2013 Tunno\u2019s Dozen KISS\u2019s<\/strong><\/p>\n How best to remember these points:<\/strong><\/p>\n Check out my book, Fixing the Engine of Justice:\u00a0 Diagnosis and Repair of Our Jury System<\/em><\/strong>.\u00a0 Select the\u00a0\u201cJury Book\u201d<\/a> tab at the top.<\/p>\n\n
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