Over the last 30 years, I have participated in thousands of depositions. During those depositions, I have seen plenty of bad attorneys and a handful of outstanding ones.
Below is a list of lawyers’ tricks and strategies I’ve seen lawyers use during a deposition to help win their client’s case.
1. Building a Report With the Witness and Establishing Trust
The very best lawyers are incredibly skilled at using this technique.
An excellent attorney can make the witness feel at ease and build rapport with witnesses without coming across as fake.
A witness who feels comfortable and appreciated is more inclined to provide additional details or insights they might not have disclosed otherwise.
I have seen many witnesses give admissions to an attorney they like and feel they can trust.
Here is how attorneys use this trick:
The opposing attorney will adopt a friendly and approachable demeanor to put the witness at ease. This involves using a pleasant tone, showing empathy, and expressing interest in the witness’s experiences.
The attorney will actively listen to the witness’s responses, nodding or acknowledging their statements to create a sense of validation.
Finding Common Ground
The attorney will try to establish common interests or experiences with the witness to create a connection and make the witness feel more comfortable.
Compliments and Praise
Offering compliments or praising the witness for their knowledge or expertise can also help build a positive relationship.
Tim’s Legal Tip: While it is natural for witnesses to engage in a respectful and cooperative manner during a deposition, they should be cautious. I tell my clients that no matter how much they like the other attorney or how genuinely the attorney may seem to like you, the other attorney is at the deposition for one reason: to find a way to destroy your case.
2. Reading Records During Depositions Without Providing Copies to Witnesses
By reading from a record without giving a copy to the witness, the attorney retains control over how the information is presented.
This can be advantageous when the attorney wants to focus on specific details or emphasize certain points without allowing the witness to review the document and potentially prepare their responses accordingly.
While this strategy is acceptable within the legal framework, it’s essential to ensure that the deposition process remains fair and complies with the rules of discovery and disclosure.
Generally, the witness and the witness’s attorney have the right to obtain a copy of any document used during the deposition and review it before responding to any questions.
3. Using “Coaching” Objections
When a witness is struggling or providing unfavorable answers, the attorney may step in with coaching objections to help steer the deposition in a more favorable direction.
Coaching objections involve attorneys providing real-time hints or cues to the witness while objecting to questions asked during the deposition.
While coaching objections might have legitimate purposes, there are ethical concerns associated with their use.
Coaching objections can interfere with the truth-seeking purpose of depositions, as they may lead witnesses to provide answers influenced by the attorney’s suggestions rather than their genuine recollection.
Here’s an example of a coaching objection:
Opposing Counsel: “When did you last communicate with the plaintiff about the contract?”
Witness: (Pauses, unsure of the exact date)
Attorney (Coaching Objection): “Objection. The witness stated in their pre-deposition interview that the last communication with the plaintiff occurred on July 15th.”
Witness: “Yes, that’s correct. The last communication was on July 15th.”
In this example, the opposing counsel asks the witness about the timing of their last communication with the plaintiff regarding the contract.
The witness pauses, indicating uncertainty about the date. However, before the witness can answer, their attorney intervenes with a coaching objection, providing the specific date they want the witness to recall.
The witness then confirms the date mentioned in the coaching objection, answering consistently with the attorney’s guidance.
4. Pretending to Have Contradictory Statements During Depositions
Pretending to have a contradictory statement during depositions is a trick some lawyers use to test witness credibility or elicit more information.
While this technique is controversial and raises ethical considerations, it can be a strategic approach in certain situations. Here’s how lawyers do this trick:
- Creating the Illusion: The attorney falsely claims they possess a statement or evidence contradicting the witness’s testimony. They might say, “I have a statement from another witness contradicting what you just said.”
- Observing the Witness’s Reaction: The attorney closely watches the witness’s response to gauge how they react to the alleged contradiction. They might look for signs of nervousness, hesitation, or attempts to alter their testimony.
- Encouraging More Information: By suggesting a contradiction, the attorney may attempt to prompt the witness to provide additional details or clarify their original statement.
Using pretend contradictory statements can be problematic from an ethical standpoint for several reasons:
- Deceptive Practice: Making false claims about possessing contradictory evidence misrepresents the actual state of the case and may deceive the witness.
- Undermining Truth-Seeking: The tactic can hinder the pursuit of truth during depositions, as witnesses might focus on defending themselves against perceived contradictions rather than providing honest and accurate testimony.
- The integrity of the Process: The legal system relies on trust and honesty. Employing such tactics may erode the integrity of the deposition process.
5. Harassing Witness with Personal Questions
Some attorneys attempt to embarrass or harass a witness during a deposition by asking mean-spirited or overly personal questions.
This controversial tactic is generally frowned upon and can have serious ethical and legal implications.
Here’s how lawyers may employ this strategy, its potential motivations, and the challenges it poses:
How It’s Done:
- Personal Attacks: Attorneys might ask questions designed to attack the witness’s character, credibility, or personal life, rather than focusing on relevant facts related to the case.
- Insulting Tone: The attorney may use a hostile or insulting tone while asking questions, attempting to intimidate or provoke emotional responses from the witness.
- Invasive Inquiries: Some attorneys may delve into the witness’s personal history, relationships, or past actions, regardless of their relevance to the case.
- Discrediting the Witness: Attorneys may employ this tactic to undermine the witness’s credibility, making them appear unreliable or untrustworthy in the eyes of the court or jury.
- Provoking Emotional Reactions: By asking mean or invasive questions, attorneys might aim to elicit emotional reactions from the witness, hoping it could impact their composure and affect their testimony.
- Defense Strategy: In some cases, attorneys might use aggressive questioning as a defense strategy to create doubt, confusion, or distraction during the deposition.
6. Prolonging The Deposition to Wear Down The Witness
Some attorneys prolong depositions to wear down witnesses, making the experience more challenging and exhausting for them.
Here’s how lawyers use this approach, its potential motivations, and the effects it can have on witnesses:
How It’s Done:
- Lengthy Questioning: Attorneys will engage in extensive and repetitive questioning, delving into minute details, to extend the duration of the deposition.
- Delays and Interruptions: Lawyers might employ frequent objections, breaks, or sidebar discussions, intentionally elongating the process.
- Multiple Sessions: Attorneys may schedule multiple deposition sessions, spreading the witness’s testimony over several days or weeks.
- Testing Witness’s Endurance: Prolonging depositions can be a way for attorneys to assess the witness’s endurance, composure, and consistency over an extended period.
- Pressuring the Witness: The tactic aims to pressure the witness to provide inconsistent or conflicting statements due to fatigue or frustration.
- Gathering More Information: By extending the deposition, attorneys can explore various angles and potentially obtain additional information from the witness.
7. Mischaracterizing Witness Testimony
Attorneys frequently employ a tactic during depositions to mischaracterize or incorrectly summarize a witness’s testimony to elicit their desired answer.
How It’s Done:
- Selective Miss Quoting and Incorrectly Summarizing Testimony: Attorneys might selectively quote or paraphrase the witness’s previous statements, highlighting certain aspects while omitting others to shape the desired response.
Implications of Mischaracterization:
- Misleading the Record: Incorrectly summarizing testimony can mislead others involved in the case, such as judges, juries, or opposing counsel.
- Potential for Inaccurate Testimony: The tactic may lead witnesses to inadvertently provide answers that do not reflect their true recollections.
- Challenges in Cross-Examination: Mischaracterized testimony may create challenges during cross-examination, with opposing counsel attempting to clarify inconsistencies.
Mischaracterizing witness testimony in depositions is a controversial and ethically questionable tactic. Attorneys are responsible for ensuring that the deposition process remains fair, respectful, and focused on seeking the truth.
Q. Can lawyers use leading questions during depositions?
Yes, lawyers often use leading questions during depositions to guide witnesses toward specific answers that support their case theory.
Q. Is it common for attorneys to employ aggressive questioning during depositions?
Aggressive questioning is not uncommon in certain situations, as it can unsettle witnesses and potentially impact the accuracy of their responses.
Q. Are depositions always adversarial in nature?
While depositions can sometimes be adversarial, they primarily serve as fact-finding opportunities for both sides to gather information.
Q. Can lawyers use silence as a tool during depositions?
Yes, strategically employing silence can prompt witnesses to provide additional information they may not have revealed otherwise.
Q. Are hypothetical scenarios frequently used by attorneys during depositions?
Yes, presenting hypothetical scenarios can help attorneys assess how witnesses might respond in various situations and gauge their reliability.
Understanding the tricks lawyers use during depositions can provide valuable insights into the art of legal strategy and negotiation.
From establishing rapport to using silence as a powerful tool, attorneys employ various techniques to navigate the complexities of depositions effectively.
By arming yourself with knowledge about these tactics, you can better prepare for the deposition process should you find yourself involved in a legal proceeding.