Calming the Excited Mind of Your Client in Deposition


Surprisingly, the task that is often the most difficult to accomplish with witnesses is getting them to a place where they actually hear the question for what it is and answer only that question. Instead, so many witnesses deliver monologues after questions, going well beyond the scope of the question. These monologues can include an appearance of answering the question, but then go far beyond that by explaining why that answer is correct, playing defense on whatever they think (rightly or wrongly) the examining attorney is trying to accomplish, helping the attorney figure out what they really should be asking, and answering a few other questions along the way. These monologues are not only unhelpful and completely unnecessary, but potentially dangerous as they provide opposing counsel with a variety of soundbites that present the witness as defensive, evasive, and unprepared. These kinds of answers are exactly what the examining attorney wants. After all, depositions are not unlike interrogations where the more the witness talks, the more trouble they create for themselves.

An excited mind is the most common cause for this problem. A deposition is an unusual and unfamiliar communication environment for most witnesses, which adds considerable stress. Many witnesses deal with that stress by regurgitating everything they are thinking upon hearing a question. Similar to the “fight or flight” response one would have when physically encountering a threat, a witness’s mind does the same thing – fight the questioner or attempt to flee by putting everything out there at once in the hope that it will all be over faster.

There are a few simple steps attorneys can take to correct this mindset and calm the excited, nervous, and anxious minds of their clients as they prepare for their deposition.

First, and most important, is practice. If there is nothing else that attorneys remember from this post, they should remember that it is critically important for witnesses to practice in the form of a mock deposition. Too many attorneys meet with their clients before depositions and give them a long list of things to remember and watch out for. Research suggests clients will remember as little as 10% of what they heard over the course of this kind of prep session. So, while they will likely not remember much of what you said, they will remember being overwhelmed with everything they are supposed to remember, which only adds to their stress.

Practice is important because it helps witnesses internalize the rules. It is one thing to hear their attorney explain what might happen in a deposition, but it is an entirely different world to actually experience it in the form of mock deposition practice. Giving clients a safe place to fail (in a mock deposition) where they can make mistakes and learn where those mistakes will take them is incredibly effective. However, it is critically important to keep the feedback simple and limited. I always give witnesses three ground rules: 1) listen to the question; 2) Disagree with problematic language or assumptions; and 3) answer only the question that has been asked. I try to keep the feedback generally limited to these rules (which capture an awful lot of the common mistakes) because it is a lot easier for witnesses to remember three simple rules.

The second strategy for calming the excited mind of witnesses relates to the third ground rule that I give all witnesses when I work with them: Answer only the question that has been asked. This is where excited minds struggle the most. It is where the overthinking happens, and the witness opens all sorts of doors that would probably not have otherwise been opened. Use of this simplistic example is a great way for your witness to understand the concept: If someone were to ask the average person, “Do you know what time it is?” most people would look at their watch and tell the person what time it is. This makes sense because that is how “normal” people communicate, but in a deposition, this is the wrong answer. The question was about whether or not the person knows what time it is, not about what time it is. Consequently, the correct answer is either “yes, I know what time it is” or “no, I do not know what time it is” and that’s it. If the person continues and indicates what time it is, they are actually predicting what they think the next question will be and answering that question as well, which is something witnesses should never do in their depositions.

Notice I included a complete sentence in that very simple answer. This is a third strategy for helping your witness understand the concept of only answering what was asked. By including a form of the question in their answer they are clearly and accurately answering just the question that was asked. While it might seem silly in this example, if a witness gets used to including a form of the question in their answer not only does it show they truly heard and understood what was asked, but it also makes the record very clear about what they were answering. This becomes critically important when the questions are not so simple or when the questioner asks long-winded or two-part questions. By including a form of the question in their “yes” or “no” answer there is little to no way opposing counsel can take the answer out of context or make it something it was not during pre-trial/trial activities.

The fourth strategy for calming the excited mind of your witness relates to what happens in these practice sessions when the client finally starts to get over hump and gets to that place where he or she is only answering the question that has been asked. When this stage is reached, I like to help the witness appreciate how much better it feels for them. When the witness gets to a place where they are answering only the question that has been asked, there is a dramatic change in the deposition environment. The hard work shifts from the witness to the deposing attorney. Deposing attorneys like longwinded answers; it makes their job easier. However, when the witness answers only the question that has been asked, it makes the deposing attorney’s job a lot harder. It takes the load off of the witness’s shoulders and places it on the shoulders of the deposing attorney. It’s important to point this out to witnesses when they get over this hump. When they understand and appreciate this shift in dynamic, they start to feel better about being in this mode. It becomes empowering for them, which solidifies the change in their answering style.

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