By Dr. Ken Broda-Bahm:
One common piece of advice given to fact witnesses during deposition preparation meetings is that it isn’t their role to instruct opposing counsel on everything they ought to know: “Witness, Don’t Teach.” I’ve resisted the temptation to set that advice to the music of Madonna’s “Papa, Don’t Preach” song, but that might be a good way to remember it. Some witnesses, of course, want to do as little talking as possible, and the chances of being the other side’s teacher is pretty remote. But for others, particularly those whose professions involve a lot of teaching-style communications – think business executives or doctors – it can be a strong urge and a hard habit to break. Experts, of course, are in a different category, and need to explain (but not persuade on) the bases for their opinions. But for fact witnesses, the time to teach will nearly always be not until trial.
Earlier this week, I was working with an anesthesiologist who simply could not deaden his impulse to take each question as an invitation to explain, expand, and expound. Applying our advice to “just answer the question and stop” proved difficult once he got into the expository groove of his typical conversation style with colleagues, patients, and family members. That habit is one worth breaking, even if it takes some extra work and focus. The mindset adds effort for the witness and creates unearned opportunities for the deposing attorney. To aid in the continuing effort to convince witnesses to take off their teacher’s hats during the deposition, this post shares five reasons why that’s a good idea.
1. Teaching Takes You Off-Topic
On occasion, the deposing attorney’s question will call for a teaching moment from the witness. The executive might be asked, “Explain to me how this agreement works,” or the doctor might be asked, “What do you tell patients about the risks and benefits of this procedure?” In response to those questions, it is fine to briefly be the teacher. The problem comes when the witness is drawn to explain and the explanation is only tangential to the question. Let’s say a manufacturing engineer in a product defect case is asked, “How often are the rolling machines tested?” and takes that as an opportunity to explain all 14 steps of the manufacturing process, or the reasons rolling machines need to be tested, or the personnel who are involved in testing rolling machines, or the process of how they’re tested, etcetera. The real answer should be more like, “Once a week.”
2. Teaching Leads to Volunteering
Once witnesses enter teaching mode, then the questioning attorney inevitably gets information that wasn’t requested. That can lead to greater exposure for the witness and to unearned rewards for the attorney taking the deposition. A surgeon, for example, might be asked whether she reviewed the surgical notes before filing them, and instead of saying, “No, not that I recall,” she might volunteer that surgical notes are prepared by the nurse, or that they’re entered on an electronic records system that the surgeon doesn’t know how to use, or that the system was down at the time following the surgury. Now, to be clear, opposing counsel has a right to all of those facts… but only if he asks for them. It will always be easiest for counsel to just sit back and listen to the witness talk, but for the witness, it is always more cautious and protective to make the lawyer earn every piece of information by answering just one question at a time.
3. Teaching Targets the Wrong Party
Witnesses need to understand and remember that depositions are conducted for discovery and the immediate audience for that discovery is the other side. In other words, you’re not talking to a fair fact finder, you’re talking to opposing counsel. Sure, some parts of your deposition might be used in trial, and it helps to keep that absent-but-potential audience in mind as well. But any parts of the deposition where the fact witness is trying to teach the background or to expand on their own defense are unlikely to be used in trial. Those explanations can come once the witness is on the stand at trial. Until then, even the best teaching isn’t going to suddenly lead the other side to the epiphany that their case is based on a misperception. It would be great if a good answer would lead a plaintiff’s attorney to slap his forehead and say, “My gosh, you’re right…we’ll withdraw our claim immediately,” but I’d wager that has never ever happened.
4. Teaching Reveals Your Trial Strategy
The kind of teaching that we are talking about is the teaching that comes across best in direct examination in trial, with a friendly attorney asking open-ended questions. The energy industry executive might be asked, “Please help the jury understand how a royalty payment is calculated from start to finish,” and then the witness has a chance to teach using all the tools: structure, themes, even demonstrative aids. But when that information is gratuitously shared at the deposition stage, the opposing counsel is getting a pretty good window into what they’ll see in trial, and the ability to prepare or conduct additional discovery against it. That attorney has a right to factual answers to anything he asks: That’s what discovery is all about. But opposing counsel has no right to advance knowledge on how you are going to frame, persuade, and teach your side of the case.
5. Teaching Puts You In the Wrong Mindset
Perhaps the biggest problem when the witness’s mind is on teaching is that they’re distracted from their most important job: to just be a witness to the facts. As a witness, your focus should be on topics like “What, exactly, is the question?” “Do I know the answer?” “How do I answer completely but sticking to just the question?” and “What terms can I put it in that are accurate, fair, and protective?” That is more than enough for any witness to focus on. It doesn’t help, and probably hurts, to add the teacher’s question of “How can I get you to understand this?”
Every attorney defending a deposition has said it to their client. The advice is simple and leaves out a lot, but it is still a good bottom-line starting point: Just answer the question.
Other Posts for Fact Witnesses:
- Avoid Gaze Aversion in Your Deposition Video
- Bottom Line Your Deposition Advice: Four Rules
- Don’t Be Led (in Deposition)
Image Credit: 123rf.com, used under license (edited)