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Category Archives: Deposition Questions

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 #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!

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.