As a practicing litigation consultant and former litigator, I believe the art of conducting a deposition is a fascinating three-way dance of questioner, deponent and presenting attorney. As was demonstrated at Magna’s Mock Crisis at the Breakers, attorneys must balance many factors no matter which side of the deposition they are on (taking or presenting). Following the conference, I was able to pose questions to four highly experienced litigators and identify their mindset at deposition.
Q. Have you ever conducted a mock deposition with a witness? And if so, how did that impact your witness?
A. Yes. The mock deposition allowed the witness to hear, review and understand how his responses would read in a printed transcript, particularly in response to uncomfortable questions designed to obtain adverse “sound-bite” testimony. When videotaped, the mock deposition allowed the witness to see how his mannerisms and expressions can influence how a jury may view him as a witness, regardless of his verbal response. Ultimately, mock depositions allow us to workshop responses and behaviors in a way that positively impact the testimony and the case result.
Q. In preparing a witness for deposition and you were only permitted one instruction, what would that be?
A. If I truly was permitted only one instruction, I suppose it would have to be to “tell the truth.” However, that should be understood. So, the one instruction I would give separate and apart from that would be “don’t guess or speculate.” A deposition is not like a test in school where you try to fill in the blank even if you really don’t know the answer, hoping to get some points out of it. In a deposition, guessing is often the fastest way for a witness to be trapped in contradictory statements.
Q. How do you instruct witnesses how to handle the simply answer “yes or no” question?
A. This is the witness’ testimony not the opposing lawyer’s. The witness should answer the questions as he or she deems appropriate without being limited to simply “yes” or “no” because that is counsel’s instruction or request. Of course if the complete answer is “yes” or “no”, then that is the best answer.
Q. In your opinion what is the most effective deposition question and why?
A. I have dozens of favorites, but the best of class to me is a “set up question” about honesty that is calculated to serve you on multiple issues in defense of every personal injury case. Specifically, I believe a Plaintiff should always be asked if it is their custom and practice to be honest with police and investigating authorities as well as health care providers when providing answers to questions about what transpired at an accident scene or when answering questions about their past and current medical conditions, especially when a form is filled out and signed by the plaintiff at or shortly after an event or in the course of medical care by treating physicians. Those questions are often honestly answered before litigation is contemplated or commenced and those answers will often diffuse the litigation testimony of even the most well prepared Plaintiff.
For example, we can agree Mr. Plaintiff that when you filled out the Health History Form at Dr. Jones office that your answers were accurate [and you set forth a long history of back and neck pain]?…Is that your signature? …You didn’t even circle the body part you are now complaining about on this form shortly after the accident and now you are testifying that you suffered injury to that body part?…’ Those types of questions create multiple areas for cross- examination on self-serving embellishment for secondary gain.
I would like to thank each of the above attorneys for their time and insights. We look forward to seeing everyone in Atlantic City at the 4th Annual CHOPPED for CHOP event.