• Don't Be Led (in Deposition)
  • March 3, 2015
  • Law Firm: Holland & Hart LLP - Denver Office
  • The name "Discovery" doesn't quite do justice to the litigation phase it describes. When it's done well and with purpose, the point of discovery isn't so much to discover evidence as it is to create evidence. In deposition, for example, the deposing attorney's fondest wish is not to discover the witness's view of what happened, but instead to get that witness to confirm the attorney's version of what the case requires. For that reason, taking a deposition is all about control. The deposing attorney would just testify on his own if he could, but the process doesn't allow that, so the next best thing is to fully control the witness. And the best way to fully control the witness is to lead.

    When I'm preparing a witness for deposition, I always make sure the witness has a full understanding of the adverse counsel's strategic imperatives. More importantly, I emphasize that witnesses should have strategic imperatives of their own. And giving up control is the surest way for a witness to lose those imperatives. One timely post from the AgileLaw blog perfectly illustrates what the lawyer taking a deposition is after. Cyclone Covey's post entitled "Why You Must Choose Your Words Carefully in Deposition" basically boils down to the advice to carefully and consistently lead the witness throughout the deposition. This advice from attorney and AgileLaw founder Cyclone Covey, makes sense from the deposing attorney's perspective. But for this post, I want to consider that advice from the witness's perspective, using Covey's post as a kind of foil. Taking a series of quotations from that post, I will break down some of the how's and why's of leading questions, and lay out some of the witness's best tools of resistance.

    Deposing Attorney Wants Control: "How do you get the witness to say exactly what you want them to say? Something that’s perfectly quotable? Something that makes your brief sing?"

    In Response: Use your soundbites, not theirs. As Covey's starting question indicates, the goal of the attorney taking the deposition is to plant language that they can then return to when briefing or arguing to the court, or further down the road, in previewing your position for a jury. One example of this search for the "perfectly quotable" can be found in medical malpractice plaintiffs' quest to get the doctor-deponent to agree with a simple "safety rule," like the notion that "Doctors should never needlessly endanger their patients." Say, "Yes," and you've given them their soundbite. Instead, put it in your own words.

    Deposing Attorneys Wants the Illusion of Knowledge: "Leading questions are more forceful, and they suggest to the witness you know the facts."

    In Response: Don't take your facts from your adversary. The deposing attorney seems to know what she is talking about. And when she is able to hit you with a series of carefully-prepared questions that are liberally sprinkled with facts, it is easy to take those facts as true. What the witness needs to remember, though, is that whether they are true or not, your role is never to confirm what you don't know. When the question introduces facts, or provides a level of detail that goes beyond your level of knowledge or recall, then the only correct answer is going to be "I don't know."

    Deposing Attorney Wants Agreement: "Many witnesses will agree with facts that you state if you phrase the questions as leading questions."

    In Response: Agree with the obvious, but fight the key areas in dispute, and work with your lawyer in advance in order to understand the difference. A witness who "doth protest too much" and who never agrees can be a liability. But the more common problem, especially for the less experienced, is the witness who agrees too readily. Even when a claim built into a leading question seems literally true, it is probably phrased in words that you wouldn't have chosen on your own. In those cases, agree where you need to, but rephrase where you can.

    Deposing Attorney Wants Over-Precision: "When you ask leading questions be sure to give details and avoid “wiggle words."

    In Response: Stick with the level of precision that you are comfortable with. That may mean finding your own level of "accurate vagueness" and staying there. If a doctor is asked how many times he's performed a procedure, the answer might be "More than fifty but fewer than a hundred," and it really might get no more precise than that. From the deposing attorney's perspective, the most precise answer is going to feel like the most accurate answer. But reality might require more vagueness, and the borders of the witness's own perceptions and recollection might need a few wiggle words.

    Deposing Attorney Wants to Transform Uncertainty: "When the witness is unsure they are more likely to agree with your assertion when the question is leading and the witness perceives you to know the facts in detail."

    In Response: Be confident in your uncertainty. Not knowing what you can't be expected to know isn't a weakness. To be sure, this isn't an excuse to just wallow in a lack of knowledge. Instead, prepare and be sure about what you should be sure about, but don't go any further. Never be more certain than your own perception and recollection permits. There is one aspect of psychology that bedevils the typical fact witness: We expect our memories to be better than they actually are. Instead of responding to that gap by filling in the picture, or agreeing with opposing counsel when she fills it in, witnesses need to just identify the level of recollection they're comfortable with, and stick there.

    Deposing Attorney Wants the Definite Answer: "This is another benefit to the leading questions: it forces you to follow up and get specific Yes/No responses to specific details."

    In Response: Condition your answer when necessary. It often happens, just after a witness gives a perfectly comprehensible answer, albeit one phrased in the witness's own words, that deposing counsel will reply with, "So, is that a 'yes' or a 'no' to my question?" The attorney may understand your response perfectly, yet still wants that rubber-stamp "yes," on his own language. Where you can give a "yes" or "no," do so, but in your own words. Where there isn't a definite "yes," or "no," -- e.g., when "it depends," then say so, and say why.

    Bottom Line, Deposing Attorney Wants to Be the Witness.

    "1. If the witness agrees with you, then they’re agreeing with YOUR version, YOUR phrasing, YOUR characterization of facts."
     2. You take charge of the deposition, because you’re the one who’s asserting what’s happening."

    In Response, You Be the Witness. This last quotation from Covey may be the perfect encapsulation of what's wrong with that this perspective: With a weak witness, the attorney becomes the witness. The best piece of advice for maintaining a witness's own personal power: You're the witness, you know what happened, and it is your perception, your terms, and your answers that are important.