April 20, 2015

Bottom Line Your Deposition Advice: Four Rules

By Dr. Ken Broda-Bahm: 


Listen, pause, use your own words, and then stop. Sometimes witness advice should be covered in detail, and at other times you just need to bottom line it. A week or so ago, I was arriving for a meeting with attorneys just as a witness was leaving. “Is there any simple advice you would convey before his deposition?” one of the attorneys asked. What I came up with on the spot is just that list of four: listen, pause, use your own words, and then stop. At the time, I noticed that the attorneys in the room wrote that list down in their own notes. Since then, I’ve used that simple quartet in a few other meetings with similar effects. So, I thought I might be onto something, and this may be a list worth sharing. If there is one sentence I would want witnesses to keep in mind as they head into a deposition, it would probably be that: listen, pause, use your own words, and stop. 

Of course, there is a great deal more to effective testimony. The list of do’s and don’ts could go on for hours, and there is a nuance to much of the advice: “Say enough, but not too much,” or “Don’t be led, but don’t be combative either,” for example. These questions of balance can only be resolved in the context of sustained practice focused on the witness’s own fact pattern with specific feedback offered. It doesn’t take much for the other side to gain something pretty useful in a deposition: A witness who is 99 percent effective can still end up giving away too much during a bad moment. But even after witnesses have heard all the do’s and don’ts, and even after they’ve had a chance to practice, many witnesses will still want a simple mantra they can hang onto and internalize. For this post, I want to briefly break down those four simple rules.  


Deposition listening is not like everyday listening. The witness is not just listening for the gist of the question, and is not just listening for the general topic. The habits that we employ in general conversation and in our working lives are not enough. In a deposition, every word matters, and witnesses need to focus in a way that gives each word force and effect. As the questioner is asking a question, the witness’s focus needs to be, not yet on thinking of a response, but on just processing and comprehending the question. When the question isn’t fully understood, then that needs to be the response: “Could you please rephrase?” 


It is hard for many witnesses to do: They either want to appear that they know all of the answers immediately, or they just want to get it over with. But the witness who pauses has a huge advantage. The pause does several things. First, it is a chance for the witness to compose a response (that response shouldn’t be composed while listening to the question — see rule #1). Second, the pause provides a chance to settle, to inhale and exhale. Third, and more practically, it is a chance for the attorney to get an objection on the record. Fourth — and this is the one that often sells it for the witness — it is often deeply irritating to the attorney taking the deposition. That attorney wants to establish  a fast and continuous flow to the questioning, but cannot when witnesses take their time to answer. 

Use Your Own Words

The point of a deposition is to discover evidence, and the questions aren’t evidence, just the answers. At least, that is the way it is supposed to work. However, when questions end with something like “…isn’t that right?” and when answers limit themselves to “Yes,” then it is really the attorney taking the deposition who is creating the testimony. Without answers in the witness’s own words, it will be the attorney’s terms, the attorney’s selection, and the attorney’s emphasis that will form the official record. Instead of just responding with “Yes” or “No,” witnesses should, more often than not, answer in a complete sentence that is phrased as they would phrase it. Over the course of a whole deposition, that simple technique will usually make for a much more protective record. 

And Then Stop 

Sticking to the question means answering just the question — completely but simply — and then stopping. If the questioner needs more, let them ask for it. Don’t just open the taps by providing unrequested elaboration or by addressing aspects of the topic rather than the question. Oversharing can result when the witness is trying too hard to explain or to justify, or is just nervously filling in time. The run-on witness can also be a goal of the deposing attorney who wants to use a ‘baited silence’ in order to encourage a witness to volunteer or to self-incriminate. Witnesses should think of a question as creating a clear boundary of relevance — a fence. If you don’t know where the fence is, the question isn’t yet clear enough. When answering, provide a complete answer to what’s inside the fence, but don’t step outside of it. 

Naturally, there is more to it than that — a lot more. But I think that simple list of four provides a pretty good mnemonic foundation. Witnesses who are able to remember and to practice those four won’t necessarily be perfect, but they will be well on their way.


Other Posts on Witness Preparation: 


Photo Credit: Christopher Sessums, Flickr Creative Commons

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