To 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!