By Dr. Ken Broda-Bahm:
The name "Discovery" doesn't quite do justice to the litigation phase it describes. When it's done well and with purpose, the point of discovery isn't so much to discover evidence as it is to create evidence. In deposition, for example, the deposing attorney's fondest wish is not to discover the witness's view of what happened, but instead to get that witness to confirm the attorney's version of what the case requires. For that reason, taking a deposition is all about control. The deposing attorney would just testify on his own if he could, but the process doesn't allow that, so the next best thing is to fully control the witness. And the best way to fully control the witness is to lead.
When I'm preparing a witness for deposition, I always make sure the witness has a full understanding of the adverse counsel's strategic imperatives. More importantly, I emphasize that witnesses should have strategic imperatives of their own. And giving up control is the surest way for a witness to lose those imperatives. One timely post from the AgileLaw blog perfectly illustrates what the lawyer taking a deposition is after. Cyclone Covey's post entitled "Why You Must Choose Your Words Carefully in Deposition" basically boils down to the advice to carefully and consistently lead the witness throughout the deposition. This advice from attorney and AgileLaw founder Cyclone Covey, makes sense from the deposing attorney's perspective. But for this post, I want to consider that advice from the witness's perspective, using Covey's post as a kind of foil. Taking a series of quotations from that post, I will break down some of the how's and why's of leading questions, and lay out some of the witness's best tools of resistance.