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Rule of The Room Spotlight #5: Never Guess

The Perfect Witness Well, we’ve finally made it. This marks the last installment in our “Rules of the Room” spotlight series. We hope you’ve enjoyed reading it and have gained some insight into the principles that guide our business. Don’t forget to leave a comment if you have any questions about anything you’ve read!

Sometimes the trickiest problems are also the most simple. Our final Rule of the Room falls into that category: Never Guess. You’d think that would almost go without saying when it comes to depositions, yet it is still vital that your client understands the gravity of their situation and what such a slip-up could mean to their future.

All answers in a deposition require certainty. A deposition enters the record and informs the subsequent legal proceedings, and a single inaccurate answer, even when entered without deceptive intent, can derail an entire case. Your witness gains no extra points for answering every question, and it is vital that you impress upon them the paramountcy of certainty for every single response they give.

Instruct your client that, if they are not completely sure about an answer to a question, they should answer with “I am not sure.” Opposing counsel may not coerce your witness into speculation, and he or she should be aware of this fact going into the deposition.

If a witness gives unreliable information, it calls his or her reputability into question and even opens the door to possible perjury charges. The latter is rare when it can be demonstrated that an honest mistake has been made, but even on top of the other problems a guess can introduce into the deposition process, it is not a risk that should be allowed to occur. An inadvertent lie is still a lie, and your witness should be aware of the repercussions he or she faces for inaccuracy in what he or she says.

A guess, when the information provided is inaccurate, can be potentially catastrophic for a case. Opposing counsel more often than not has access to a wide array of recorded information, and when oral testimony conflicts with the record, it can turn a previously airtight case into Swiss cheese. Don’t let your witnesses’ testimony serve the opposition.

With this and the other four Rules of the Room, you and your client will be well-prepared to face whatever opposing counsel has to throw at you. To explore each of them in more depth, don’t forget to redeem your free attorney review session of our entire program!

Check back to our blog in two weeks for more deposition technique analysis, legal news, and insight!

Rule of the Room Spotlight #4: Only Answer the Question Asked

sworniinTo the untrained eye, a deposition is very similar to a conversation. As lawyers, we know better. We know that a deposition is more akin to a game of chess. Therefore, it’s incumbent upon us to make sure our clients and witnesses know the rules before we throw them to the wolves.

This week, we shine our spotlight on Rule of the Room #4: Only Answer the Question Asked. This rule alone can serve as the foundation for a good deposition strategy, and its importance cannot be stressed enough.

This is an area that is especially difficult for certain kinds people, notably teachers and professors. For this reason, this issue is particularly problematic when it comes to inexperienced expert witnesses. Experts tend to teach; for them, it is a natural mode of expression. So when they have an opportunity to combat perceived ignorance, their first instinct is to jump at the chance.

This desire to inform is something that can understandably be exploited by opposing counsel in order to change the direction and scope of a deposition. Your witness needs to understand the reason why he or she has been called and, in the case of an expert, the scope of his or her purview as an expert in the case.

If a question can be reasonably and accurately answered with a “yes” or “no,” then your witness should stop there and offer no more. If a question is built upon a faulty premise or opposing counsel insinuates a misunderstanding in their wording, your witness should fight the urge to instruct and merely state that the question is unanswerable as worded.

If your witness fails to follow this rule, they open the window to additional lines of questioning that may fall outside the area of his or her expertise, thereby giving opportunity for his or her proficiency, knowledge, and, in some cases, ethicality to be called into question.

Opposing counsel has a right to depose your witness, but it their job to do the work to gain that knowledge. If your witness offers too much information, he or she is essentially doing their job for them.

Check back in two weeks for the conclusion of this series, highlighting our final Rule of the Room: Never Lie.

If you’d like more information on our Rules of the Room, don’t forget to redeem your free attorney review session of the entire Perfect Witness Program!

Rule of the Room Spotlight #3: Use the Purposeful Pause

7610100582_39459f8851This is the third in our ongoing series about our Rules of the Room. Don’t forget to check out the first and second posts if you missed them. This week, we’ll be discussing “The Purposeful Pause,” one of the most important techniques to surviving a deposition.

A deposition is not like a normal conversation, and it’s vital that your client understands this. The normal rhythms of conversation do not apply, and failing to see that can lead your witness right into a trap. When asked a question, instruct your witness to pause for a breath and take that time to think before answering. This technique leads to a number of advantages.

1: It allows you time to object

If a particular question falls outside of the witness’s function in appearing at the deposition (especially in the case of an expert witness,) the Purposeful Pause will give you time to object to the question. This applies to the whole range of objection-worthy questions, and if your witness properly uses the Purposeful Pause, he or she will not reveal information that is either improper or outside the scope of their expertise.

2: It allows the witness to consider the full question

By exercising the Purposeful Pause, your witness will have time to absorb the full question, as opposed to hastily responding to the question that he or she expected. If a witness is too quick to answer, he or she may misunderstand precisely what was asked and open the door to possibilities that opposing counsel may not have yet considered.

3: It allows the witness to take control of the rhythm of the deposition

Lawyers know that the deposition process can be daunting for the uninitiated, and many will not hesitate to take advantage of that fact. They may adopt a pushy demeanor and ask rapid-fire questions in an attempt to confuse the witness. By learning the Purposeful Pause, your witness will have an effective “parry” in his or her arsenal, negating the effect that this technique may have on him or her.

The Purposeful Pause is one of the most basic and most effective tools for giving a successful deposition, and is the foundation upon which a credible defensive posture can be built.

Check in in two weeks for the next Rule of the Room spotlight: Rule of the Room #4: Only answer the question asked.

If you’re ready to give the Perfect Witness program a test, email us for your free attorney review session with the entire program!

Rule of the Room Spotlight #2: Always Understand the Question

Rule of the room The Perfect WitnessTwo weeks ago, we began our “Rule of the Room” spotlight series with Rule #1: Never Lie. The “Rules of the Room” are the basis of The Perfect Witness training program. Any witness can use these five rules to master and take the stress out of the deposition process.

This week, we’ll discuss another one of these important foundations to the art of giving a credible deposition: Always understand the question.

The stress of a deposition can leave witnesses feeling jumpy and stressed. They may want to end the process as quickly and painlessly as possible. To so do effectively, though, they must not be too quick to answer the question. There is no time limit for a deposition, and they won’t get points for beating any clock.

Train your witnesses to always be sure that, when being deposed, they listen to the whole question. Your witness shouldn’t assume that any question is going to go one particular way and answer before the questioning lawyer can finish. Your witness should consider each and every word of the question before formulating a response. In addition, if the wording of a question is confusing to your witness or they miss a word, they should always feel comfortable asking for clarification or sharing their puzzlement. If a witness doesn’t understand a question, “I do not understand the question” is the right answer.

Another part of understanding the question is to know where the answer to the question begins and ends. Opposing counsel almost certainly has a particular trajectory planned with their questions, and to offer additional information in the answer to one is to possibly reveal additional angles from which to approach the issue at hand. A witness’s answer should be both complete and brief. If a simple “yes” or “no” satisfactorily answers a question, your witness shouldn’t feel any pressure to expound further. The more the witness talks, the more the opposition learns. At the same time, while being brief, it’s also important to not be terse or appear irritable. That may give the other side the idea to elicit that kind of response during trial.

In two weeks, we’ll cover Rule of the Room #3: Use the purposeful pause. If you’re ready to put The Perfect Witness to work for your practice, click here to get your free attorney review session!

Rule of the Room Spotlight #1: Never Lie

slide-swornHere at The Perfect Witness, we have five rules that guide our philosophy and our approach to witness training. Over the next few weeks, we’ll take an in-depth look at each of them and examine how they fit into The Perfect Witness’ system as a whole.

First up, we have Rule number one: never lie. It’s number one because it is the most vital to a positive deposition. It’s a pretty basic concept, so we’ll start at the beginning.

A deposition is defined as “the process of giving sworn evidence.” All depositions are conducted under oath, and to lie during a deposition is perjury. Perjury is a criminal offense, and though rare, charges could be filed as a result. This is all very obvious to a lawyer, but may be less so for clients and witnesses. It’s very easy to get caught in a sloppy lie, and doing so could mean losing your case before trial ever even begins.

It’s incredibly easy to get caught in a lie during deposition—even for experienced liars. Lying in a courtroom setting is orders of magnitude more risky than lying in another environment for a few simple reasons. Attorneys have a wide array of documentation at their disposal, and it will only take one discrepancy between the record and your testimony to cast doubt on your story. Beyond that, many are also very experienced in taking depositions, and can tell when things aren’t adding up or being omitted.

It’s always easier for an attorney to put a positive spin on less attractive facts than it is to recover from the blemish caused by a lie. Evidence and circumstances are always more useful when they serve a single narrative. When the truth starts to “diverge,” so to speak, it becomes much more difficult to construct a compelling case.

Also, when a witness lies in what appears to be an attempt to obfuscate certain aspects of the facts of a case, you can bet that opposing counsel will dive at that opportunity and apply even more scrutiny than they would have otherwise.

Instruct your client to be honest—and to be honest when they aren’t quite sure of the answer. “I don’t recall” or “I will have to check” is infinitely less detrimental than a “yes” where there should be a “no” or vice-versa.

Check back in over the next few weeks for our next edition: Rule #2: Always Understand the Question. If you’re ready to put The Perfect Witness to work for your practice, click here to get your free attorney review session!

3 Easy Tips to Help your Witness Create a Credible Demeanor

If your witness’ credibility has been impugned, the impact of their testimony goes from helping your case to having a negligible impact at best and destroying it at worst. And it doesn’t even have to be because of anything negative that your witness actually did or said; just the appearance of impropriety or ineptitude can be enough to sway a jury.

That’s why it’s important that you work with your witness to help establish a credible mien and avoid common pitfalls that can lose them a jury’s confidence. Start with these three tips.

1: Inconsistency is the same as lying.

Make sure your witness is prepared to give a cogent and precise testimony. If they flub minor details, it can mean major damage for your case. (See Rule of the Room #1: Never Lie.) A witness caught in a lie can look forward to shattered credibility, a destroyed case, and criminal charges on top of that. So make sure your witness doesn’t stumble into a lie, even unintentionally.

2: Be confident and approachable.

Your witness is your expert on a certain facet of the facts of your case, so he or she should be able to speak intelligently about it. Tongue-tied responses and nervous or furtive mannerisms can give a jury pause when considering the weight of your witness’ testimony later.

3: Stay level-headed!

The courtroom can be a high-pressure environment, especially for those unfamiliar with it. Your witness should be comfortable answering questions in that setting and prepared emotionally for the questions opposing counsel may ask. If a witness becomes overly or inappropriately emotional during question, it may prompt juries to question the witness’ motivation for testifying.

Prepare your witnesses with The Perfect Witness

The Perfect Witness’ online 1-hour course will give your witnesses the resources they need to give an effective, credible deposition. Learn more today and get your free attorney review session by clicking here.

3 Tips for Training a Confident Expert Witness

Expert witnesses exist to lend academic credibility to your case. If your expert witness performs poorly, you not only miss out on that credibility—you lose even more. Use these five tips to make sure that your expert witnesses are prepared to face both deposition and a jury.

1.    Make sure the expert knows why you have retained them.

When you call an expert witness, you are calling on their reputation in their field: invoking their authority on their domain on knowledge as it relates to your case.

Don’t let opposing counsel trick them into calling their credibility into question by taking the line of questioning outside the witness’s comfort area. If this happens, the witness should say that they cannot answer because they lack the sufficient knowledge.

Along the same lines, the opposition may also try to get your expert witnesses to tell stories that conflict. Each of your witnesses should be clear on exactly why you have called on their expertise, and decline to answer any questions that fall outside of that scope.

2.    This is a courtroom, not a classroom.

By nature of their extensive knowledge, many expert witnesses tend to be teachers, professors, and academics. These are people who feel a natural drive to inform. That drive absolutely must be suppressed in a court room environment.

Teach your witnesses to answer the question, and only the question. They should not try to “educate” opposing counsel. If a question contains poor science or demonstrates a misunderstanding of an issue at hand, your witness should make a note of the fact that the question is poorly or confusingly worded, and is unanswerable. They shouldn’t attempt to assist opposing counsel in rewording the question.

3.    Win over the judge and the jury

Your witness should appear at ease, relatable, approachable, and in control at all times. Prepare your witness for tricks opposing counsel may employ to attempt to gain control of the rhythm of the questions and answers. Eye contact is also important. Teach your witness to maintain eye contact with whomever is cross examining them, even when formulating an answer to the question. This will inspire an impression trustworthiness and certainty.

The witness should not be bated into aggression, and attempt to remain level-headed with all of their responses. In short, the witness should be trained to prevent themselves from being tricked into appearing unlikable or dishonest.

An expert witness is good, but a well-trained expert witness is invaluable.

We hope that these tips will help you as you prepare your experts for testimony, for more in-depth information, click here to claim your free attorney review of the entire The Perfect Witness witness training program!

Don’t Let Nerves Destroy Your Case

So many of the pitfalls we experience in depositions occur because Don’t Let Nerves Destroy Your Caseour client or witness is nervous or intimidated. And, when you think about it, that’s pretty understandable. Bright lights, disapproving glares. To some, the deposition room may feel like something out of a spy movie. As litigators, we’ve become relatively immune to a lot of the pressures that arise in these situations, but we must always remember to be sensitive of our clients’ possible inexperience.

That’s a big part of why we do what we do here at The Perfect Witness. The number one cause of all fear could arguably be said to be uncertainty, and we firmly believe that careful preparation goes a long way to achieving results. When we give shape to our fears, we are better equipped to face them.

But that doesn’t mean that if we describe the room and the process to the client, that all of those nerves related to depositions will just evaporate. We also have to inform them of how it all works, and how they can approach a deposition most effectively. Above all, we also need to ensure we give the client practical, useful advice for how to cope with opposing counsel, the questions they ask, and the manner in which they ask them.

Loose Lips Sink Ships.

Hold up! Before you object, we’re definitely not counseling perjury here! Instead, what we mean is we must emphasize to our client that it’s very important that they approach each question with care and deliberation.

Here, we highlight Rule of the Room #3: Use the Purposeful Pause. Everything that our client says at a deposition will enter the record, and by pausing a moment before beginning their answer, our client can make certain that they, (1) fully understand the question, and (2) answer that question (and only that question!) effectively, completely, and clearly.

The Purposeful Pause also establishes a rhythm for the deposition that is more beneficial to the deposed. If opposing counsel is more… ahem… aggressive, in their approach to their line of questioning, the Pause will allow our client to take back some control of the room and may eliminate the feeling of “backpedaling” or “off-guardedness” that the opposing counsel may be trying to elicit.

The Question and the Answer, and not much else.

A deposition is not a conversation. This is something that needs to be absolutely clear to the client, and forms the basis for two more Rules of the Room: Only Answer the Question Asked and Never Guess. Remind your client that it’s never a good idea to volunteer information outside of the scope of the question. In a similar vein, as a deposition is about the facts, a guess is never appropriate. A client should feel comfortable saying “I don’t know.”

The client may feel the pressure to provide the most complete information he or she can, and they need your help to understand that it is not beneficial to their situation to offer information that either wasn’t asked for or has the potential to be inaccurate.

The Tools To Succeed.

If we work to not only inform our client of what to expect, but how to best respond to it, we can give them the means to mount an effective deposition defense and work towards a positive resolution.

To learn more about how The Perfect Witness can prepare your witnesses for deposition, request your free attorney review.

Deposition Questions to Help Depose an Adverse Witness

witnessTestimony from alleged eyewitnesses and expert witnesses can make or break important civil or criminal cases. Adverse witnesses and their testimony must be carefully scrutinized before they destroy any hopes of achieving a favorable outcome. Some attorneys go so far as to hire private investigators to dig up dirt or break down the stories of witnesses, but the most effective tool an attorney has to overcome adverse witnesses is the deposition. However, expert deposition preparation and courtroom witness training can prepare and important witness to anticipate and properly respond to these questions. In addition, expert witness training can prevent the testimony of an expert witness from not being heard.

Following are ten questions a fully trained and dedicated attorney should ask during the deposition of an adverse, or hostile, witness in any type of case. Because of the nature of these questions, it may only take one favorable answer from the witness to destroy his or her credibility.

Is this your first deposition?
If this is not the first deposition for the witness, follow-up questions may ask for specifics concerning prior testimony delivered in court. This testimony can later be researched for impeachable evidence.

Have you ever been arrested?
Opposing attorneys are certain to object upon asking this question, but it is usually valid and sustained by the judge in most cases. If the answer is yes, the question should be followed with another: Were you convicted? Convictions for crimes of moral turpitude may be enough to cast doubt on the testimony.

Have you met or talked with the opposing attorney prior to this deposition?
This question can be followed up with specific questions aimed at discovering whether the witness is truly independent.

Have you seen the plaintiff/defendant on occasions before the events in the case transpired?
This question is useful in uncovering prior relationships between the witness and the plaintiff or defendant.

What did you do to prepare for this deposition?
This is a trick question that can be asked to discover what the witness believes to be his or her weak suits in delivering testimony. Any documents that were reviewed, places visited or people met by the witness could lead to grounds for impeachment.

Have you made any statements, written or oral, including to journalists or on public websites, concerning the events in this case?
Before asking this question, Internet and database searches should be obtained to disprove any false replies.

Did you read or listen to any statements from other witnesses or view any photographs or diagrams regarding the case before this deposition?
Hearing statements made by other witnesses or viewing evidence regarding the case may affect the judgment of the witness.

Do you have government issued identification, such as a driver’s license, with you today?
If the witness has identification, preferably something with an address on it, ask to see it, and read it aloud so that the information is entered into the record.

How did you first meet your attorney?
This question may lead to previous legal issues, lawsuits or divested interest that can be used to cast doubt on the credibility of the witness.

Was anyone else in the room when you met with your attorney?
If so, the witness may have already waived his or her right to attorney-client privilege.

Asking the above questions should be standard procedure during the deposition of an adverse witness. However, many trial attorneys never learn this in law school or while studying to pass the bar. Understanding the importance of these questions is only learned through experience or courtroom witness testimony training, specifically deposition training and expert witness training.