Outside of my traditional jury consulting work, I periodically work as an expert for change of venue motions, conducting original research and offering opinions based on the findings. As part of this work, I am sometimes deposed or asked to testify at court hearings. These experiences are incredibly helpful for when I work with witnesses to prepare them for their deposition. Of all the standard tips that consultants offer witnesses, most are easier said than done. It is one thing to sit across the table from a witness and tell him or her how to handle different scenarios, but it is an entirely different situation to be the witness in those moments, under pressure and trying your best to get it right and tell the truth well. In my experience, testifying in a deposition is incredibly exhausting because it requires so much attention to detail. It is easy to get lost in all of this, which gives opposing counsel opportunities to massage and manipulate your witness’s testimony. In this week’s blog, I want to talk about teaching your witnesses to take control of their answers and not allowing opposing counsel to bully them into something they did not intend to say.
Any seasoned litigator knows that so much of a deposition is the questioning attorney trying to get the soundbites they want, but it was interesting for me to recently have the witness experience and see just how relentless opposing attorneys are. In fact, it comes as little surprise that many witnesses give up at some point in their deposition and allow the opposing counsel to inject their own thoughts, themes, and language into the witness’s answers.
Here are 5 rules for teaching your witnesses to take control of their answers when testifying.
1. Listen harder than you talk. A witness’s job is to talk in a deposition, but this overshadows the most important task of all, which is listening carefully to the questions. This may sound easy, but depositions require very effortful listening to the entire question and careful consideration of the language being used. This is not the same kind of listening we use in our everyday lives. In everyday conversation, we generally listen until we feel like we have the gist of what is being asked and then give answers based on what we think the person really wants to know. Your witness needs to understand not only how important listening is, but how much work and attention it will involve. After my last deposition, I was mentally exhausted, and I am convinced that much of that exhaustion came from all the effortful focus I needed just to carefully listen to what was being asked in each question. All good deposition performances begin with good and effortful listening, and this is the most important thing for your witness to understand.
2. Don’t let opposing counsel tell you want kind of answer to give. Opposing attorneys are great at using theatrics and a little bullying in their efforts to get witnesses to give the answers they want to hear. Whether objecting to an answer as non-responsive or insisting to the witness that it is a simple question that calls for a simple answer (with “yes” or “no” being the most common options provided), opposing attorneys work hard to control the answer the witness gives. As a witness, it is easy to feel like you are doing something wrong or need to do something better, but that is precisely the point. Opposing counsel wants the witness to feel uneasy, so they are more likely to change their answers or become more agreeable. Instead, tell your witness to be confident in his or her answers and not get bullied into changing them just because opposing counsel would like an answer that is more helpful to their case. It helps to explain to witnesses that when opposing counsel gets upset in a deposition, it is most often because they thought it would be easier getting the witness so say what they want him or her to say, and that is turning out not to be the case. Witnesses need to understand and experience (through mock deposition) that there will be many subtle efforts to get the witness to change their answer to something that is more agreeable to opposing counsel. They need that practice to recognize when it is happening and correct it.
3. Don’t agree that something is “fair” to say. There are a few common lead-ins that are clear red flags that opposing counsel is about to inject their own spin into the witness’s answer. Examples include “would it be fair to say,” “so what you’re saying is,” and “would you agree that.” Tell your witness to listen for questions that being with these phrases, which are good indicators that opposing counsel is trying to inject their own spin into the answers. These are the questions that require a little extra careful listening. Often, opposing counsel will try to sound so reasonable and fair-minded as they toss some loaded language or assumptions into their overly general description of things. Witnesses should recognize these common lead-in phrases and be ready to answer in their own words.
4. Be repetitive. Repetitiveness often feels inappropriate for witnesses, especially those with little or no prior experiences with testimony. It doesn’t feel right to say the same thing over and over again, which is why so many witnesses change their answer, even in simple ways just by mixing it up with different language. This opens doors for opposing counsel. Instead, your witness needs to understand that a good answer once is a good answer twice and so on. Tell your witnesses to get very comfortable with repetitiveness and repeat their answer over and over again if opposing counsel wants to ask similar questions over and over again.
5. Take breaks. Most attorneys do not let their witnesses go more than an hour without taking a break. This is incredibly important. As I mentioned, my experience testifying at deposition was mentally exhausting even though I knew exactly what to expect and have spent so much time in my professional life working with other witnesses. The attention to detail is tiring, so it is important for a witness to take regular breaks. Encourage them to bring snacks that are healthy sources of energy to give themselves a boost on the breaks.