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Tag Archives: deposition

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 #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!

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.