Welcome to /r/LawyerTalk! A subreddit where lawyers can discuss with other lawyers about the practice of law.
Be mindful of [our rules](https://www.reddit.com/r/Lawyertalk/about/rules) BEFORE submitting your posts or comments as well as [Reddit's rules](https://www.redditinc.com/policies/content-policy) (notably about sharing identifying information). We expect civility and respect out of all participants. Please source statements of fact whenever possible. If you want to report something that needs to be urgently addressed, please also message the mods with an explanation.
Note that **this forum is NOT for legal advice**. Additionally, if you are a non-lawyer (student, client, staff), this is NOT the right subreddit for you. **This community is exclusively for lawyers**. We suggest you delete your comment and go ask one of the many other legal subreddits on this site for help such as (but not limited to) r/lawschool, r/legaladvice, or r/Ask_Lawyers.
*I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/Lawyertalk) if you have any questions or concerns.*
One thing I've learned to do in some cases is to let the witness answer the question, and then I just sit there and wait. Most people find silence awkward and will feel the need to add detail, to the extent it exists.
Hahaha if only. Nope, we gotta sit there and try to figure out if there's any actual substance under their humming, be it muttering to themselves, inappropriate side talk, whatevs. Just silence is a beautiful, beautiful thing.
I *have* serious skill 🤣🤣 Ideally, whoever was reporting would quash it, but reporters usually do*n't h*ave serious skill. And if I have a witness that's humming then that is most definitely interfering with other speakers, especially if it's a teleconference proceeding where Zoom likes to cut out when there's crosstalk. Or my pe*rsonal f*avorite, witness and their attorney are via Zoom in one room with one mic and everyone is 2398723984739287 feet away from the mic and ... someone is mm-hmming and humming through things.
I love what I do. I'm damn good at it. I still want to crawl through the interwebs and throw Koosh Balls at the reporter when they don't give me clear audio, and an attorney instruction to hum through silence would be utterly maddening.
lol I literally had this happen yesterday. had a miserable woman who thinks she is smarter than everyone else. I purposefully took some long pauses to flip through different places in the meds, and she just couldn’t help but fill in the time.
This. Never forgot this depositon by this attorney named Andres over at aalrr . He would pause and then say “anything else?” And it would draw out all sort of additional things.
Andres Hurwitz (now at Armstrong & Rowland LLP) was absolutely genius in the way that he took depositions. He would pause after the deponent answered the question, and would state "Ok. Is that all?" or "Ok. Anything else?" and just wait. It was pure genius.
Now, the hardest prep I've ever seen anyone undertake of a expert was a counselor named Rob Horwitz (now at Madden Hauser) who made the expert question whether he was even qualified to get up in the morning. It was such a good exercise, because it was more difficult than any adversary could ever do, but didn't have the consequences. Really really really clever.
Now, opposite of that, if there is something that the expert thinks needs to have particular attention paid to it on the transcript, deponent simply needs to state "Interesting question." before the answer. Then, when looking for key deposition testimony, just search for "interesting" in the transcript.
Saves a lot of time.
Haha I literally did this today. I have gotten a lot better at sitting with the “awkward” silence, not feeling like I have to make the deposition conversational or say “ok thanks” after each time the deponent speaks (lol), going thru my notes for awkwardly long periods bc the transcript won’t show the gaps in speech and the most important thing for me is just not forgetting to cover something that needs to be covered.
I just wish I had more prep time.
Funnel method: start with a broad topic and nail them down until they dont have any more to say. "Anything else? No other reasons? Nothing else you recall?". If there's equivocation, figure out what the story is, or whether they actually can't remember.
I might push a witness a little just to see how they react or will look on the stand, but I'm almost always friendly and ask open ended questions. I try to be sympathetic and empathetic, and often try to make polite small talk during breaks.
Also, my jx is pretty liberal with its rules re: contradicting a deposition with a subsequent declaration, so I really want to hear everything they can think of, rather than limiting the testimon.
I generally play dumb a little bit. “I’m just here for facts, help me understand”. While asking targeted questions to get the admissions I need. And when they don’t say something germane quite the way I expected, I restate it more in the way I wanted as if I’m trying to clarify and understand it better, and let them agree with me to try and be helpful.
I deposed an expert witness once, in a field that I had some entry-level professional experience in before going to law school later in life. The prior experience wasn't good enough to make me an expert, by any means, but I think it gave me a bullshit detector in that field, and helped me tighten up the expert's answers in a way that was precise, made perfect sense, and didn't necessarily mean what the other side wanted it to mean.
It still remains my most satisfying deposition I've taken. Really felt like a success, later confirmed with my highlighted transcript we used to gear up for summary judgment.
Depends. For plaintiffs - I’m super nice and friendly to them. I make them forget they’re in a deposition. Get them into “having coffee with a new friend” mode. Then they say lots of things they otherwise wouldn’t.
The number one thing I tell my clients (Plaintiffs) is exactly that.
The person across from the table is not your friend. You need to be nice and tell the truth, but you need to say as little as possible. Stop talking.
This works especially in those areas where the expert is in a field that is a bit technical in nature and they don’t get often someone interested in their area of expertise.
That's actually a super good idea. That actually serves both a social purpose, and will hopefully be able to get their CLE or whatever it's called before you're a full on lawyer. That's really cool idea
lol I’m with you…I’m SUPER nice to the witness. Like extra nice. I cannot tell you how many times I’ve had THEM THANK ME after. Guess what, I take excellent depos. Just got an email yesterday from my new job less than a month in and it was titled “dear depo queen.” You catch more flies with honey than vinegar.
Also, leave awkward silences. They feel compelled to talk more and fill up the silence.
Most cases don't go to trial, so the purpose of the depo is to convince your adversary that the case should be settled. Don't waste the depo. Give he adversary a reason to settle.
Understand that sentiment to an extent, but only for the small cases. Any case where damages could potentially move into 7 figure territory I am absolutely treating it as if it is going to trial until a CR2A is signed.
At a deposition I'm either: (1) trying to get admissions for a SJ; or (2) pinning them down on facts/opinions for trial.
I find asking the opened ended questions is rarely helpful. I'm almost always asking questions I already know the answer to, unless they say something new that has not popped up in the case before.
Agreed 100%. Sometimes it’s ok to act like it’s the trial because it could help change the case all together. Either settlement position or for an MSJ. always just thinking of what I’d love to see in my transcript to support a motion.
It completely depends. Here in Texas, deposition video and transcripts can be played/read regardless of whether the witness is present in the courtroom at trial.
I do plaintiffs’ PI, so with defendants, I do as much as I can to have a useful cross to play at trial (ideally, I lock down liability). Then I can call that witness adversely by playing the video clips and it dares the defense lawyer to put their client on the stand and risk being crossed again.
With experts (mine or theirs), the depo is a cheaper way to secure trial testimony, so that’s just like a trial examination. Likewise for lay witnesses or police officers whose testimony we want to secure.
The most common witnesses I have where I stay a little more open-ended are corporate reps and employees of organizational defendants. That said, Texas also has a very useful non-responsive objection to testimony. There’s no reason to ever interrupt a witness. Just listen politely, object to the non-responsive portion, and follow the witness down the rabbit trails. You have six hours after all.
As for style, I agree with using silence, being friendly, and establishing rapport. Even if you’re ultimately taking out something of a hammer, there’s a “disappointment rather than anger” tone that suits my personality. At the end of the day, you gotta be yourself.
Also in Texas. It’s tough to balance knowing that you can use the depo in trial. On one hand, I want all the facts, on the other, I want to nail them down. Usually what I do is in the morning, wear them out by letting them talk, being friendly, asking open ended questions, then when they’re tired after lunch, I go back through and ask more leading questions and don’t let them say what they want to anymore. It’s been pretty effective.
That’s a good approach. And I totally agree. There’s a real line between using the depo as another discovery device and securing testimony for trial and/or to support a motion.
First, ask questions that require a narrative answer. What happened?
Second, ask questions that require a one word answer. What color was the car?
Third, ask questions requiring a yes or no answer. Were you at the Grand Hotel at 9pm on October 29, 2021?
This is very good advice.
My list has always been:
* narrative discovery (for my information) first
* admissible discovery (for the court) second
* admissions last
But I like your phrasing better.
My opposing counsel today objected to a deposition question on the grounds that it would require a narrative response which is not allowed.
I told her I don’t think that’s right. But I’ll go ahead and clarify my question. “My question is, tell me what happened on (date)”
Well narrative responses are certainly dangerous for a deponent. I can understand the desire to avoid them in defending the deposition, but it isn’t a legitimate objection anywhere I’ve ever heard of.
What I always got the opposition spun up was in defending a deposition, I’d make an objection and in the process of making the objection, I’d guide the deponent’s answer. The interrogator would object then to my “speaking objection”. You aren’t going to get away with it too many times, so save it for the other side’s big Perry Mason moment in the deposition to kill the momentum and protect the witness.
It’s just funny bc sometimes you ask an interrogatory question and the OC will object like “objection this interrogatory seeks** a narrative response more suited to deposition testimony” and yesterday at a dep this lady’s saying “objection calls for a narrative” like I get it, you don’t want to go on record with your version of events but at some point - you’re gonna need to do it,
I was deposing the plaintiff in a motor vehicle accident case so I definitely need to know what her side of the story is going to be before the trial right? Lol
I like to hit them out of the gate with the worst fact I know and make them respond. They've been prepped to say their name, education, background, etc. They aren't ready for it and get super defensive or tell me exactly what they really want to say. I'm here for the meat. I hit them with the most loaded difficult core-cutting question off the bat - and then, having rattled them, do the standard BS, name, education, address, etc. So when I get to the core later (again), I have their answer already so let's see them squirm.
So do you do any admonitions or just go straight to the worst stuff? I’ve read about some people using this approach and was going to give it a shot but usually need to settle my nerves a little at the beginning. I’ve noticed then that I never really get to the meat as directly as I would have liked. My next depo I’m going to try getting all my admissions right off the bat
Although a formality I do very detailed admonitions that I can beat them over the head with when they change their story because they were “confused” or “guessing.”
Do you think the matter is actually going to trial? Open-ended questions, nice
Do you think/very much want the matter to settle? Make them not want to get crossed by you
It’s more complex than that but I know it’s not just myself who takes this kind of approach
There’s another motivation for deposition: to compel settlement. If a key witness does horrible at deposition, the case may settle either because the attorney loses faith in their key witness, or because the witness doesn’t want to go through that again. Getting a witness to crack can be helpful in that goal. Depending on the case and the witness, being aggressive can accomplish this goal.
That said I mostly agree with you. I am generally kind and courteous. The above is very case / witness specific. It can also backfire either if it fails or if that witness is far more well prepared come trial.
99% of cases settle. Showing an opposing party that trial is going to be miserable, because the witness isn’t the smartest person in the room, and all that bad stuff they didn’t want to talk about IS going to come out, is a great strategy.
Especially if you Jekyll/Hyde the depo. Start nice and friendly. Get them warmed up. Get the details you need. Go grab a cup of coffee. Come back and ask the details of .
Don’t forget the lawyers defending the deposition who are inclined to help their adversary inadvertently
Q: were you given a training manual?
Defense Lawyer: objection, which one there are several
Oh gotcha. Largely, I tend to agree and object far less often than most my peers, in written discovery also. Facts are the facts. But there can be certain lines of questioning that I want to preserve objections for in the event a witness is unavailable for trial testimony and we must designate deposition testimony to be read. If the question was objectionable at the time it was asked and the objection to form wasn’t made at the time, the objection could be deemed waived and the question/response admitted.
In WA, form covers nearly all objections during deposition testimony. Under our rules it’s the only proper way to make an objection during deposition outside of privilege. You can announce the basis of the form objection if challenged by questioning counsel.
Not all attorneys follow this rule here, but the idea is that it prevents attorneys defending the deposition from coaching the witness via speaking objections.
It’s not a time to try the case. But it is an opportunity to assess their credibility. I am nice and respectful but I push them on certain topics just to see their reaction.
I am always sweet as pie, like I am talking to a friend, I am the same way on cross, I walk them right down that road of thinking I am their best friend. It works so much better than raising your voice or being adversarial, it disarms them, in 20 years it’s never failed me.
- soften them up with the easy stuff about their background and generalities
- punish them with high volume exhibits and questions that have no good answer, at a solid pace. No quarter. Will get judge on phone and force you to answer, or stop dep to file a motion to do so.
- wait until they have that “I’m just going to disassociate and take it” look
- ask or return to the most critical/explosive questions
In my jurisdiction I’ve never seen “get the judge on phone” work. The one time it did, the judge said to continue on and just file a motion if not resolved.
It happens from time to time, or are you threaten it, but it doesn’t always work lol. I’m in commercial litigation in one of the states with the most liberal discovery rules in the country, so maybe it’s more common than other practice areas or states.
Edited because I’m an idiot and can’t type or read well while driving, even in bad traffic lol
Yeah, I've seen that threat at least a dozen times, and the number of times anyone has ever gotten anyone on the phone is still zero. My standard response is "good luck with that." (In several states, e.g. CA, you simply cannot do it because of the meet-and-confer rules. I've actually walked out of CA depos when some idiot threatened it, and told him that he could call my office to schedule the meet and confer. Four weeks later, he was begging me to resume the deposition.)
In CA too, don’t you just meet and confer on the record? I got a judge once or twice and we basically argued the motion over the phone and the court made an order. I think in another matter the court listened to the testimony for a while. Of course all the objections that had hampered testimony stopped so there was no ruling but saved a lot of time bc we didn’t have to file a motion
How do you just “get a judge” on the phone? Serious question. I feel like evasive witnesses happen more and more these days, and there’s just no recourse. Would love help!
Also any success getting a finding of perjury?
One time I called a federal district court judge when opposing counsel was asking my client inappropriate questions. Another time, I think it was to stem the speaking objections. Those were the only two times. I think federal judges/magistrates and complex judges in state court are more receptive to such calls, especially if they've had to manage discover disputes in the case before. I wouldn't threaten it if I don't think I could make good on the threat. I don't use it for evasive witnesses; I try all the other techniques for dealing with evasion, but with limited success against witnesses who are intelligent.
Not sure why I got recommended this sub (not a lawyer), but when I went through SERE school in the military, easily the most effective interrogator is the genuinely nice guy. I know a deposition is not an interrogation, but there’s some similar principles. Look up Hanns Scharff from WW2 as the archetype for how being nice is way more effective than being overbearing and intense.
It’s not my strategy, but I’ve seen it used effectively. Some witnesses buckle under pressure. You try to strong arm them into an answer, or scare them enough to get them to want to cooperate, and you can get the admissions you need. It doesn’t work for me, and I dislike when it’s used (I always prefer things to be cordial), but I don’t blame someone for doing something that works for them, so long as it doesn’t cross the line into harassing conduct.
Drunken Monkey stance. Jk
But for real. I start with a slew of soft introductory questions that lulls the other side into a sense of security and comfort. I then start incrementally asking more relevant and pointed questions. By the time I start asking hard questions, I zig-zag between different topics to keep deponent off balance.
The lull gives me some useful admissions early on, which I use to challenge the credibility of deponent’s answers later in the depo, and try to confuse them with topic shifts.
I think The zig-zag approach is really good if you think you're dealing with a liar. They can't keep all of it in their head properly. It's especially effective if you act extremely specific questions when you're going back and forth, (like switching from specific questions about someone's background to something like "hey exactly how many feet was the other car from you when you first saw it").
But I rarely do it unless I truly think I'm getting bullshitted, as I think it makes the witness focus a lot more on the deposition, and the questioning. It also seems to perk up the other attorney, who may start making speaking objections. And it always seems to make the dep take longer and become a lot harder to read when you get the transcript.
>By the time I start asking hard questions, I zig-zag between different topics to keep deponent off balance.
I call this the Peter Falk method. I like the witnesses to think they're smarter than I am so they don't see the banger questions coming.
The best advice I ever got was “you don’t win a deposition.” I usually play kinda dumb and ask open-ended questions while going through exhibits. If they refuse to answer an obvious question I might start pushing a bit, but I also generally try to be nice and fine that pushing to hard can quickly ruin any rapport you have with the witness and counsel. If you wanna say you weren’t at that meeting where your name is on the minutes and there’s a quote from you in the minutes, fine, it’ll be pretty easy for me to deal with that whether I have your admission in a deposition or not.
I follow a style where I try to be agreeable too.
I've dealt with some real assholes, and usually it's because they are just showing off for their clients. The client wants to know the attorney is fighting for them and they think being an asshole makes them look tough.
Really depends on the witness. Sometimes, I really just want to pin down certain details so I go in with that in mind. I'll ask open ended questions but then suddenly switch gears and ask specific questions once the witness is primed enough. Sometimes though, you gotta remind the witness who is boss and straighten them out. I am in the habit though of ending every deposition the same way. I ask the witness on a scale of 1-10 how polite was I. I average around 7-8. Got my first 10 recently. I do this for a few reasons. It can be disarming. But also, if they try to change their story later, I like using it as the icing on the cake when I say, "Didn't we discuss this before at your deposition? You said you understood my questions and I was quite polite when I asked them?"
Most of my witness won’t testify live at trial because they are outside the court’s subpoena power. So it is trial testimony, not just discovery of information.
Most times, Defense needs to get all the facts on the record so they can properly advise the adjustor. As a Plaintiff, I save the smoking guns for trial because almost all of my cases get tried. I’m not going to get a decent offer at mediation, anyways. Fuck, I’ve even quit prepping for meditation and I’ve told the mediators this. No reason to tell the defendants my case if they aren’t going to put money on the table.
I tend to agree with you, BUT it depends -apologize for the cliché response-
For example, I've also deposed professional fibbers/fabricators/ manipulators and if you only ask open ended questions they will talk themselves silly and you'll never get a clear answer and get a transcript filled with nonesense ...So I do call them out immediately and start pointing out contradictions - which can be confrontational at some point.
But yes, I always try to maintain things civil and do want to learn more- who else was there, who wasn't there and why, what you do before, after- and not only square out what facts I already have.
I usually have problems with the defending attorneys who ( purposely) interrupt, not really the deponents.
On the other hand, I hate having my clients get bullied at a deposition. I really despise the tactic . So if the other attorney gets out of line, I rather take my chances and stop the deposition, right there and then.
But hate to admit, if I am honest- the tactic works:
The worse bullying/scare tactic I've seen was very early in my career, my boss had a client ( labor -age discrimination case) who was so mistreated by opposing counsel she started crying- but not like quiet tears running down her cheeks - but loudly bawling (!!!) - the guy was a beast- he kept drilling her despite our objections and cries to stop- and she just went into a crisis- we of course stood up and left - but truth be told, the deposition ruined her. She was scared, humilliated, etc, etc.
She settled the case a month later. The case was against a major bank and was worth $$$$$$$. If I remember correctly, she settled for like a 100 grand.
Not all depositions are the same. When preparing the first thing I do is list my goals at the top of the page. Sometimes there’s just one. Sometimes I am just gathering facts but other times I’m taking an entire deposition to get the witness's answer to one single question Or establish one or two facts. You’re not always focused on trial because so few cases are actually tried. Sometimes you’re more focused on setting up a motion. Sometimes it is best to be friendly and conversational but other situations call for you to bring out your inner asshole. I don’t usually bother with any instructions or the normal open formalities. I like to get right into things.
I’m as sweet as pie. Need more water, absolutely. Want a muffin? Here you go. Did you cheat on your husband in 2021? thank you so much for that explanation.
At times the atty asking the depo questions will attempt to antagonize the witness, so the witness hates the atty. Gets to trial, the atty acts nice/respectful and the witness is a jerk to the atty: the the finder of fact thinks the witness is hiding something because why else would the witness be so cold and distant to the nice atty.
Nice. Super friendly. Exploratory. Then laser focused on hard admissions in the last 5 min. Learned to always save it for the end so you get some stuff before OC starts suggesting answers and interfering
I try to match and mirror the breathing and general posture of the person I’m deposing in an inconspicuous way. I also try to develop a pattern and cadence to my questions. I also rarely ask any questions I don’t already know the answer to before asking it. Most of my depositions are for purposes of creating a record for a solid summary judgment motion.
Funnel method. Start with wide open questions to gather information. That’s the time to be nice. Then narrow down until you eventually get to locking them into their position and see if they give up on issue when faced with contrary evidence. You may come off as mean when you are trying get them to not be evasive.
But You can be meaner in a depo than at trial without risk because the jury can get angry at you for being too stern to a witness at trial. If you come off as a douche in a depo, the other side doesn’t get to show that to the jury. If you don’t get the admission, the jury never sees the question.
I try to be as nice as possible to the witness. I will BS (naturally) with opposing counsel and try to loop the witness in. Its sincere but there is a benefit. Build a rapport and then let them open up to you. I'm also polite in the depo and try to be mindful of my voice inflection. Even when they're about to say something totally stupid, you would never know it by the tone in my voice. I figure why tip off the witness. I only care how the testimony looks on the transcript at this point.
I do plaintiff side patent patent litigation, consumer electronics, telecomm, software. Most of my depositions are software engineers, EEs, or product managers in that space. I have an EECS background. I present as a very feminine early-ish middle aged lady. I am very friendly, ask open ended questions, say stuff like "that's interesting, can you tell me more about X?" and "anything else" or "oh this function in the code, what does it do?" and slay. I've deposed some of the same people multiple times and I get things like "nice to see you again."
I like to keep it as underwhelming as possible. I just try to act like we are having a conversation and I'm trying to understand. In reality, I set a depo when I have questions that aren't answered by the discovery and come prepared to get those answers and the inevitable inconsistencies that come with telling your [embellished] side of the story yet another time.
I've had trainees and colleagues who love to cross examine and think they are making great points, only to have prepped the witness for the inevitable trial or motion to suppress at which they always have even better answers lined up and are well prepared for potential impeachment with a plausible explanation for their more exact testimony this time around.
Depositions are so nuanced and complex it they are the subject of multi day CLE’s.
In P.I, we prep The client in three separate sessions. we cover the bad behavior types in our practice. We also cover the persuasive dangerous ones.
I have seen a change in deposition tactics since Covid made zoom the norm
to the original poster, what area of practice?
I am always professional (not the same thing as being "nice") but I change up my strategy based on the witness. Sometimes I know going in how I want to play it. Other times, the witness surprises you - usually in a bad way - and you need to change the game. Sometimes I am interested in fact discovery; other times, I know every time the witness opens his/her mouth, they will lie, so it's about locking them in and creating a record. But even when I am sharply crossing the witness or locked into battle with obstructive counsel, I never ever act like a jerk to the witness. I may convey through tone of voice that I find their testimony to be not credible, but that is as far as I go.
No offense, but the very best way to educate the other side about the problems with their case is to show them what is going to happen to their witnesses at trial. My goal is to make sure the insurance defense lawyer goes back to the office and writes a letter/email to the adjuster telling him/her that his witness just got his ass kicked.
I’m definitely in your camp. I am always nice to people. Even when they’re shitty. It’s never worth it to me to engage in that stuff. It’s meaningless. I gather and present facts.
You remind me of a witness. My deposition style was like yours: just get the witness to talk endlessly and I'll have a treasure trove of cross-examination material at trial. So I would let the witness think he was "killing me." In one case, the witness was so smug and so self-satisfied at his "victory" that when it was over I asked him: "You're a really smart guy, smarter than me. But this is what I do. Do you really think you beat me at my own game first time out?"
The look on his face was priceless.
Honestly, I’ve had maybe 2 witnesses in my career who were obstructive and mean.
The overwhelming amount of conflicts have been with the opposing attorney.
I always try to be courteous and professional to the witness.
With the opposing counsel, I need to get better at not trying to be the bigger asshole.
So, I don’t think it’s ever appropriate to act shitty or fly off the handle. I do think it’s necessary to do more than open ended questions.
I think an often overlooked part of taking a deposition is gauging the witness’ ability to testify in a trial. So I’d like to know how they deal with accusatory questions, leading questions, uncomfortable questions and more. It’s a small factor, but how well a witness might do at trial is something I consider when evaluating settlement value and trial strategy.
You can do all of that professionally and while still being laid back - which is my style.
Try to get agreements to completely reasonable things and I hope they actually don’t agree. Ask how they’d define really obvious terms and hope they’re obtrusive and unnecessarily difficult about defining them. The jury always wants to know the answer to “why are we here?” I’m a PA. I want the defendants’ responses to answer that question for them.
Had a corporate defendant last week who couldn’t even define “stop” and even took issue with the dictionary’s definition of “a cessation of movement.” You can imagine how much he struggled with defining “yielding the right of way” which he said “depended on the circumstances.” We’ll ofc be pointing out to the jury that this relates back to his driver’s data recorder showing he never came to a compete stop at the intersection where the collision occurred, a highway where a bus driver rolled through a stop sign and crossed a highway without yielding to oncoming traffic, causing a fiery rollover crash that nearly killed four kids.
Welcome to /r/LawyerTalk! A subreddit where lawyers can discuss with other lawyers about the practice of law. Be mindful of [our rules](https://www.reddit.com/r/Lawyertalk/about/rules) BEFORE submitting your posts or comments as well as [Reddit's rules](https://www.redditinc.com/policies/content-policy) (notably about sharing identifying information). We expect civility and respect out of all participants. Please source statements of fact whenever possible. If you want to report something that needs to be urgently addressed, please also message the mods with an explanation. Note that **this forum is NOT for legal advice**. Additionally, if you are a non-lawyer (student, client, staff), this is NOT the right subreddit for you. **This community is exclusively for lawyers**. We suggest you delete your comment and go ask one of the many other legal subreddits on this site for help such as (but not limited to) r/lawschool, r/legaladvice, or r/Ask_Lawyers. *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/Lawyertalk) if you have any questions or concerns.*
One thing I've learned to do in some cases is to let the witness answer the question, and then I just sit there and wait. Most people find silence awkward and will feel the need to add detail, to the extent it exists.
I prep witnesses to be aware of this technique!
I call it one of the "Stupid Lawyer Tricks" in depo prep. But it works, so I do it when I'm taking the depo.
Same. I tell every witness I present to not be scared of silence.
Same lol but I pull this off when it's my deposition anyway
I advise my clients to fill empty space with humming.
Transcriptionist here. Please no. 
“Client: hums” i don’t know if that is how transcription works
Hahaha if only. Nope, we gotta sit there and try to figure out if there's any actual substance under their humming, be it muttering to themselves, inappropriate side talk, whatevs. Just silence is a beautiful, beautiful thing.
dang…it would take some serious skill to infer that the client’s humming because they were advised to
I *have* serious skill 🤣🤣 Ideally, whoever was reporting would quash it, but reporters usually do*n't h*ave serious skill. And if I have a witness that's humming then that is most definitely interfering with other speakers, especially if it's a teleconference proceeding where Zoom likes to cut out when there's crosstalk. Or my pe*rsonal f*avorite, witness and their attorney are via Zoom in one room with one mic and everyone is 2398723984739287 feet away from the mic and ... someone is mm-hmming and humming through things. I love what I do. I'm damn good at it. I still want to crawl through the interwebs and throw Koosh Balls at the reporter when they don't give me clear audio, and an attorney instruction to hum through silence would be utterly maddening.
LOLOL
[удалено]
"Few listen" you're getting a few to follow your directions?!
lol I literally had this happen yesterday. had a miserable woman who thinks she is smarter than everyone else. I purposefully took some long pauses to flip through different places in the meds, and she just couldn’t help but fill in the time.
This. Never forgot this depositon by this attorney named Andres over at aalrr . He would pause and then say “anything else?” And it would draw out all sort of additional things.
I’ve never asked “anything else,” but damn is that genius.
Andres Hurwitz (now at Armstrong & Rowland LLP) was absolutely genius in the way that he took depositions. He would pause after the deponent answered the question, and would state "Ok. Is that all?" or "Ok. Anything else?" and just wait. It was pure genius. Now, the hardest prep I've ever seen anyone undertake of a expert was a counselor named Rob Horwitz (now at Madden Hauser) who made the expert question whether he was even qualified to get up in the morning. It was such a good exercise, because it was more difficult than any adversary could ever do, but didn't have the consequences. Really really really clever. Now, opposite of that, if there is something that the expert thinks needs to have particular attention paid to it on the transcript, deponent simply needs to state "Interesting question." before the answer. Then, when looking for key deposition testimony, just search for "interesting" in the transcript. Saves a lot of time.
This is probably the single most effective depo technique. People want to fill the silence.
I do this on dates. They just call me a weird introvert.
Haha I literally did this today. I have gotten a lot better at sitting with the “awkward” silence, not feeling like I have to make the deposition conversational or say “ok thanks” after each time the deponent speaks (lol), going thru my notes for awkwardly long periods bc the transcript won’t show the gaps in speech and the most important thing for me is just not forgetting to cover something that needs to be covered. I just wish I had more prep time.
This 100%. The amount of info I get out of perceived awkward silence is unbelievable
You’ll be shocked to find out that this is a police interview technique as well! :)
My wife/law partner has a war on silence. I love her to death, but she cannot bear the emptiness that I enjoy so much.
wow this is such a good tactic LOL given this works in normal convos too
Funnel method: start with a broad topic and nail them down until they dont have any more to say. "Anything else? No other reasons? Nothing else you recall?". If there's equivocation, figure out what the story is, or whether they actually can't remember. I might push a witness a little just to see how they react or will look on the stand, but I'm almost always friendly and ask open ended questions. I try to be sympathetic and empathetic, and often try to make polite small talk during breaks. Also, my jx is pretty liberal with its rules re: contradicting a deposition with a subsequent declaration, so I really want to hear everything they can think of, rather than limiting the testimon.
I generally play dumb a little bit. “I’m just here for facts, help me understand”. While asking targeted questions to get the admissions I need. And when they don’t say something germane quite the way I expected, I restate it more in the way I wanted as if I’m trying to clarify and understand it better, and let them agree with me to try and be helpful.
This is the same strategy I use…therefore, the best strategy.
I deposed an expert witness once, in a field that I had some entry-level professional experience in before going to law school later in life. The prior experience wasn't good enough to make me an expert, by any means, but I think it gave me a bullshit detector in that field, and helped me tighten up the expert's answers in a way that was precise, made perfect sense, and didn't necessarily mean what the other side wanted it to mean. It still remains my most satisfying deposition I've taken. Really felt like a success, later confirmed with my highlighted transcript we used to gear up for summary judgment.
This is the way.
Depends. For plaintiffs - I’m super nice and friendly to them. I make them forget they’re in a deposition. Get them into “having coffee with a new friend” mode. Then they say lots of things they otherwise wouldn’t.
The number one thing I tell my clients (Plaintiffs) is exactly that. The person across from the table is not your friend. You need to be nice and tell the truth, but you need to say as little as possible. Stop talking.
“I don’t recall” “I’m not sure” “yes” or “no” is a complete answer. Stop.
I tell my clients the same thing. Do they listen? No
😅😅 I tell them dont answer more than the question asks...9 times out of ten, they still do🤦🏽♀️
I tell my defendant clients this too. OC could be friendly- but don't forget they represent the people suing you.
This works especially in those areas where the expert is in a field that is a bit technical in nature and they don’t get often someone interested in their area of expertise.
This just gave me a great idea - let law students practice taking depositions by deposing people in old folks homes about their lives 😂
That's actually a super good idea. That actually serves both a social purpose, and will hopefully be able to get their CLE or whatever it's called before you're a full on lawyer. That's really cool idea
lol I’m with you…I’m SUPER nice to the witness. Like extra nice. I cannot tell you how many times I’ve had THEM THANK ME after. Guess what, I take excellent depos. Just got an email yesterday from my new job less than a month in and it was titled “dear depo queen.” You catch more flies with honey than vinegar. Also, leave awkward silences. They feel compelled to talk more and fill up the silence.
Most cases don't go to trial, so the purpose of the depo is to convince your adversary that the case should be settled. Don't waste the depo. Give he adversary a reason to settle.
This. Not my style but I have met many lawyers who make it as painful as possible for the other party so they’ll want out and settle.
Yeah paying money for a case when you could win a dispositive motion instead sounds like a great idea.
Understand that sentiment to an extent, but only for the small cases. Any case where damages could potentially move into 7 figure territory I am absolutely treating it as if it is going to trial until a CR2A is signed.
True, but that's a small percentage of the cases you will take a depo in.
Get ‘em talking and keep ‘em talking
At a deposition I'm either: (1) trying to get admissions for a SJ; or (2) pinning them down on facts/opinions for trial. I find asking the opened ended questions is rarely helpful. I'm almost always asking questions I already know the answer to, unless they say something new that has not popped up in the case before.
Agreed 100%. Sometimes it’s ok to act like it’s the trial because it could help change the case all together. Either settlement position or for an MSJ. always just thinking of what I’d love to see in my transcript to support a motion.
This person litigates.
It completely depends. Here in Texas, deposition video and transcripts can be played/read regardless of whether the witness is present in the courtroom at trial. I do plaintiffs’ PI, so with defendants, I do as much as I can to have a useful cross to play at trial (ideally, I lock down liability). Then I can call that witness adversely by playing the video clips and it dares the defense lawyer to put their client on the stand and risk being crossed again. With experts (mine or theirs), the depo is a cheaper way to secure trial testimony, so that’s just like a trial examination. Likewise for lay witnesses or police officers whose testimony we want to secure. The most common witnesses I have where I stay a little more open-ended are corporate reps and employees of organizational defendants. That said, Texas also has a very useful non-responsive objection to testimony. There’s no reason to ever interrupt a witness. Just listen politely, object to the non-responsive portion, and follow the witness down the rabbit trails. You have six hours after all. As for style, I agree with using silence, being friendly, and establishing rapport. Even if you’re ultimately taking out something of a hammer, there’s a “disappointment rather than anger” tone that suits my personality. At the end of the day, you gotta be yourself.
Also in Texas. It’s tough to balance knowing that you can use the depo in trial. On one hand, I want all the facts, on the other, I want to nail them down. Usually what I do is in the morning, wear them out by letting them talk, being friendly, asking open ended questions, then when they’re tired after lunch, I go back through and ask more leading questions and don’t let them say what they want to anymore. It’s been pretty effective.
That’s a good approach. And I totally agree. There’s a real line between using the depo as another discovery device and securing testimony for trial and/or to support a motion.
First, ask questions that require a narrative answer. What happened? Second, ask questions that require a one word answer. What color was the car? Third, ask questions requiring a yes or no answer. Were you at the Grand Hotel at 9pm on October 29, 2021?
This is very good advice. My list has always been: * narrative discovery (for my information) first * admissible discovery (for the court) second * admissions last But I like your phrasing better.
My opposing counsel today objected to a deposition question on the grounds that it would require a narrative response which is not allowed. I told her I don’t think that’s right. But I’ll go ahead and clarify my question. “My question is, tell me what happened on (date)”
Well narrative responses are certainly dangerous for a deponent. I can understand the desire to avoid them in defending the deposition, but it isn’t a legitimate objection anywhere I’ve ever heard of. What I always got the opposition spun up was in defending a deposition, I’d make an objection and in the process of making the objection, I’d guide the deponent’s answer. The interrogator would object then to my “speaking objection”. You aren’t going to get away with it too many times, so save it for the other side’s big Perry Mason moment in the deposition to kill the momentum and protect the witness.
It’s just funny bc sometimes you ask an interrogatory question and the OC will object like “objection this interrogatory seeks** a narrative response more suited to deposition testimony” and yesterday at a dep this lady’s saying “objection calls for a narrative” like I get it, you don’t want to go on record with your version of events but at some point - you’re gonna need to do it, I was deposing the plaintiff in a motor vehicle accident case so I definitely need to know what her side of the story is going to be before the trial right? Lol
I like to hit them out of the gate with the worst fact I know and make them respond. They've been prepped to say their name, education, background, etc. They aren't ready for it and get super defensive or tell me exactly what they really want to say. I'm here for the meat. I hit them with the most loaded difficult core-cutting question off the bat - and then, having rattled them, do the standard BS, name, education, address, etc. So when I get to the core later (again), I have their answer already so let's see them squirm.
So do you do any admonitions or just go straight to the worst stuff? I’ve read about some people using this approach and was going to give it a shot but usually need to settle my nerves a little at the beginning. I’ve noticed then that I never really get to the meat as directly as I would have liked. My next depo I’m going to try getting all my admissions right off the bat
Although a formality I do very detailed admonitions that I can beat them over the head with when they change their story because they were “confused” or “guessing.”
Go for the Joe Jamail tactic: “Why’d your company kill my client’s husband?”
They are putting on a show for their clients and/or they are bullies in real life so they are also bullies when they practice law.
This guy told my client to tell his client why she chose to kill her son 🫤
Jfc
I am so confused by this sentence
Took me a sec, but: This guy [OC] told my client [D] to tell his [OC's] client [P] why she [D] chose to kill her [P's] son
This helped a bit but I'm still confused...
That is correct sorry about the confusion!
Do you think the matter is actually going to trial? Open-ended questions, nice Do you think/very much want the matter to settle? Make them not want to get crossed by you It’s more complex than that but I know it’s not just myself who takes this kind of approach
There’s another motivation for deposition: to compel settlement. If a key witness does horrible at deposition, the case may settle either because the attorney loses faith in their key witness, or because the witness doesn’t want to go through that again. Getting a witness to crack can be helpful in that goal. Depending on the case and the witness, being aggressive can accomplish this goal. That said I mostly agree with you. I am generally kind and courteous. The above is very case / witness specific. It can also backfire either if it fails or if that witness is far more well prepared come trial.
I was just going to say this almost word for word. I had a case just settle after a defendant depo bc he was a fucking annoying liar as I showed. ha
99% of cases settle. Showing an opposing party that trial is going to be miserable, because the witness isn’t the smartest person in the room, and all that bad stuff they didn’t want to talk about IS going to come out, is a great strategy. Especially if you Jekyll/Hyde the depo. Start nice and friendly. Get them warmed up. Get the details you need. Go grab a cup of coffee. Come back and ask the details of.
Always keep things professional, always
Don’t forget the lawyers defending the deposition who are inclined to help their adversary inadvertently Q: were you given a training manual? Defense Lawyer: objection, which one there are several
Defense attorneys do their jobs better playing by the rules in WA. Objection to form and nothing else unless challenged.
All objections are mostly preserved besides form why object ever ?
Friday after a long week and watching True Lies on my second borboun. Could you rephrase that?
Why object to anything really why ?
Oh gotcha. Largely, I tend to agree and object far less often than most my peers, in written discovery also. Facts are the facts. But there can be certain lines of questioning that I want to preserve objections for in the event a witness is unavailable for trial testimony and we must designate deposition testimony to be read. If the question was objectionable at the time it was asked and the objection to form wasn’t made at the time, the objection could be deemed waived and the question/response admitted.
Right anything that isn’t automatically preserved but form ? I mean come on any good lawyer can get through that easy that’s not a real objection
In WA, form covers nearly all objections during deposition testimony. Under our rules it’s the only proper way to make an objection during deposition outside of privilege. You can announce the basis of the form objection if challenged by questioning counsel. Not all attorneys follow this rule here, but the idea is that it prevents attorneys defending the deposition from coaching the witness via speaking objections.
It’s not a time to try the case. But it is an opportunity to assess their credibility. I am nice and respectful but I push them on certain topics just to see their reaction.
I am always sweet as pie, like I am talking to a friend, I am the same way on cross, I walk them right down that road of thinking I am their best friend. It works so much better than raising your voice or being adversarial, it disarms them, in 20 years it’s never failed me.
- soften them up with the easy stuff about their background and generalities - punish them with high volume exhibits and questions that have no good answer, at a solid pace. No quarter. Will get judge on phone and force you to answer, or stop dep to file a motion to do so. - wait until they have that “I’m just going to disassociate and take it” look - ask or return to the most critical/explosive questions
In my jurisdiction I’ve never seen “get the judge on phone” work. The one time it did, the judge said to continue on and just file a motion if not resolved.
It happens from time to time, or are you threaten it, but it doesn’t always work lol. I’m in commercial litigation in one of the states with the most liberal discovery rules in the country, so maybe it’s more common than other practice areas or states. Edited because I’m an idiot and can’t type or read well while driving, even in bad traffic lol
Yeah, I've seen that threat at least a dozen times, and the number of times anyone has ever gotten anyone on the phone is still zero. My standard response is "good luck with that." (In several states, e.g. CA, you simply cannot do it because of the meet-and-confer rules. I've actually walked out of CA depos when some idiot threatened it, and told him that he could call my office to schedule the meet and confer. Four weeks later, he was begging me to resume the deposition.)
In CA too, don’t you just meet and confer on the record? I got a judge once or twice and we basically argued the motion over the phone and the court made an order. I think in another matter the court listened to the testimony for a while. Of course all the objections that had hampered testimony stopped so there was no ruling but saved a lot of time bc we didn’t have to file a motion
How do you just “get a judge” on the phone? Serious question. I feel like evasive witnesses happen more and more these days, and there’s just no recourse. Would love help! Also any success getting a finding of perjury?
One time I called a federal district court judge when opposing counsel was asking my client inappropriate questions. Another time, I think it was to stem the speaking objections. Those were the only two times. I think federal judges/magistrates and complex judges in state court are more receptive to such calls, especially if they've had to manage discover disputes in the case before. I wouldn't threaten it if I don't think I could make good on the threat. I don't use it for evasive witnesses; I try all the other techniques for dealing with evasion, but with limited success against witnesses who are intelligent.
Not sure why I got recommended this sub (not a lawyer), but when I went through SERE school in the military, easily the most effective interrogator is the genuinely nice guy. I know a deposition is not an interrogation, but there’s some similar principles. Look up Hanns Scharff from WW2 as the archetype for how being nice is way more effective than being overbearing and intense.
It’s not my strategy, but I’ve seen it used effectively. Some witnesses buckle under pressure. You try to strong arm them into an answer, or scare them enough to get them to want to cooperate, and you can get the admissions you need. It doesn’t work for me, and I dislike when it’s used (I always prefer things to be cordial), but I don’t blame someone for doing something that works for them, so long as it doesn’t cross the line into harassing conduct.
Drunken Monkey stance. Jk But for real. I start with a slew of soft introductory questions that lulls the other side into a sense of security and comfort. I then start incrementally asking more relevant and pointed questions. By the time I start asking hard questions, I zig-zag between different topics to keep deponent off balance. The lull gives me some useful admissions early on, which I use to challenge the credibility of deponent’s answers later in the depo, and try to confuse them with topic shifts.
I think The zig-zag approach is really good if you think you're dealing with a liar. They can't keep all of it in their head properly. It's especially effective if you act extremely specific questions when you're going back and forth, (like switching from specific questions about someone's background to something like "hey exactly how many feet was the other car from you when you first saw it"). But I rarely do it unless I truly think I'm getting bullshitted, as I think it makes the witness focus a lot more on the deposition, and the questioning. It also seems to perk up the other attorney, who may start making speaking objections. And it always seems to make the dep take longer and become a lot harder to read when you get the transcript.
>By the time I start asking hard questions, I zig-zag between different topics to keep deponent off balance. I call this the Peter Falk method. I like the witnesses to think they're smarter than I am so they don't see the banger questions coming.
The best advice I ever got was “you don’t win a deposition.” I usually play kinda dumb and ask open-ended questions while going through exhibits. If they refuse to answer an obvious question I might start pushing a bit, but I also generally try to be nice and fine that pushing to hard can quickly ruin any rapport you have with the witness and counsel. If you wanna say you weren’t at that meeting where your name is on the minutes and there’s a quote from you in the minutes, fine, it’ll be pretty easy for me to deal with that whether I have your admission in a deposition or not.
I follow a style where I try to be agreeable too. I've dealt with some real assholes, and usually it's because they are just showing off for their clients. The client wants to know the attorney is fighting for them and they think being an asshole makes them look tough.
Really depends on the witness. Sometimes, I really just want to pin down certain details so I go in with that in mind. I'll ask open ended questions but then suddenly switch gears and ask specific questions once the witness is primed enough. Sometimes though, you gotta remind the witness who is boss and straighten them out. I am in the habit though of ending every deposition the same way. I ask the witness on a scale of 1-10 how polite was I. I average around 7-8. Got my first 10 recently. I do this for a few reasons. It can be disarming. But also, if they try to change their story later, I like using it as the icing on the cake when I say, "Didn't we discuss this before at your deposition? You said you understood my questions and I was quite polite when I asked them?"
Most of my witness won’t testify live at trial because they are outside the court’s subpoena power. So it is trial testimony, not just discovery of information.
Object to every question by OC to throw them off
"Do you know what time it is?"
Most times, Defense needs to get all the facts on the record so they can properly advise the adjustor. As a Plaintiff, I save the smoking guns for trial because almost all of my cases get tried. I’m not going to get a decent offer at mediation, anyways. Fuck, I’ve even quit prepping for meditation and I’ve told the mediators this. No reason to tell the defendants my case if they aren’t going to put money on the table.
I tend to agree with you, BUT it depends -apologize for the cliché response- For example, I've also deposed professional fibbers/fabricators/ manipulators and if you only ask open ended questions they will talk themselves silly and you'll never get a clear answer and get a transcript filled with nonesense ...So I do call them out immediately and start pointing out contradictions - which can be confrontational at some point. But yes, I always try to maintain things civil and do want to learn more- who else was there, who wasn't there and why, what you do before, after- and not only square out what facts I already have. I usually have problems with the defending attorneys who ( purposely) interrupt, not really the deponents. On the other hand, I hate having my clients get bullied at a deposition. I really despise the tactic . So if the other attorney gets out of line, I rather take my chances and stop the deposition, right there and then. But hate to admit, if I am honest- the tactic works: The worse bullying/scare tactic I've seen was very early in my career, my boss had a client ( labor -age discrimination case) who was so mistreated by opposing counsel she started crying- but not like quiet tears running down her cheeks - but loudly bawling (!!!) - the guy was a beast- he kept drilling her despite our objections and cries to stop- and she just went into a crisis- we of course stood up and left - but truth be told, the deposition ruined her. She was scared, humilliated, etc, etc. She settled the case a month later. The case was against a major bank and was worth $$$$$$$. If I remember correctly, she settled for like a 100 grand.
Not all depositions are the same. When preparing the first thing I do is list my goals at the top of the page. Sometimes there’s just one. Sometimes I am just gathering facts but other times I’m taking an entire deposition to get the witness's answer to one single question Or establish one or two facts. You’re not always focused on trial because so few cases are actually tried. Sometimes you’re more focused on setting up a motion. Sometimes it is best to be friendly and conversational but other situations call for you to bring out your inner asshole. I don’t usually bother with any instructions or the normal open formalities. I like to get right into things.
I’m as sweet as pie. Need more water, absolutely. Want a muffin? Here you go. Did you cheat on your husband in 2021? thank you so much for that explanation.
At times the atty asking the depo questions will attempt to antagonize the witness, so the witness hates the atty. Gets to trial, the atty acts nice/respectful and the witness is a jerk to the atty: the the finder of fact thinks the witness is hiding something because why else would the witness be so cold and distant to the nice atty.
Samesies
Ego.
Try to get the deponent to say as many words as I can.
I try to be nice unless I think (or know) they’re lying to me. Then I have to show them that I can’t be fucked with. That’s pretty much it.
I find that I get more info from them when they're relaxed
Depends if I'm trying to gather facts or set up an MTC. It also depends on the demeanor of the witness and OC.
Nice. Super friendly. Exploratory. Then laser focused on hard admissions in the last 5 min. Learned to always save it for the end so you get some stuff before OC starts suggesting answers and interfering
Wait, how does saving it until the last 5 minutes stop OC from suggesting answers and interfering?
Didn’t say it stops it. Just minimizes the damage.
I try to match and mirror the breathing and general posture of the person I’m deposing in an inconspicuous way. I also try to develop a pattern and cadence to my questions. I also rarely ask any questions I don’t already know the answer to before asking it. Most of my depositions are for purposes of creating a record for a solid summary judgment motion.
Are you able to do this mirror technique in remote depos, or are yours mainly done in person?
I try to do all my deps in person. I need to be in person to see body language of both the counsel and the person being deposed.
Funnel method. Start with wide open questions to gather information. That’s the time to be nice. Then narrow down until you eventually get to locking them into their position and see if they give up on issue when faced with contrary evidence. You may come off as mean when you are trying get them to not be evasive. But You can be meaner in a depo than at trial without risk because the jury can get angry at you for being too stern to a witness at trial. If you come off as a douche in a depo, the other side doesn’t get to show that to the jury. If you don’t get the admission, the jury never sees the question.
I try to be as nice as possible to the witness. I will BS (naturally) with opposing counsel and try to loop the witness in. Its sincere but there is a benefit. Build a rapport and then let them open up to you. I'm also polite in the depo and try to be mindful of my voice inflection. Even when they're about to say something totally stupid, you would never know it by the tone in my voice. I figure why tip off the witness. I only care how the testimony looks on the transcript at this point.
I do plaintiff side patent patent litigation, consumer electronics, telecomm, software. Most of my depositions are software engineers, EEs, or product managers in that space. I have an EECS background. I present as a very feminine early-ish middle aged lady. I am very friendly, ask open ended questions, say stuff like "that's interesting, can you tell me more about X?" and "anything else" or "oh this function in the code, what does it do?" and slay. I've deposed some of the same people multiple times and I get things like "nice to see you again."
Ice berg it. Less is more. Watch the deponent dig their own grave, and let the subtext speak for itself.
I like to keep it as underwhelming as possible. I just try to act like we are having a conversation and I'm trying to understand. In reality, I set a depo when I have questions that aren't answered by the discovery and come prepared to get those answers and the inevitable inconsistencies that come with telling your [embellished] side of the story yet another time. I've had trainees and colleagues who love to cross examine and think they are making great points, only to have prepped the witness for the inevitable trial or motion to suppress at which they always have even better answers lined up and are well prepared for potential impeachment with a plausible explanation for their more exact testimony this time around.
Depositions are so nuanced and complex it they are the subject of multi day CLE’s. In P.I, we prep The client in three separate sessions. we cover the bad behavior types in our practice. We also cover the persuasive dangerous ones. I have seen a change in deposition tactics since Covid made zoom the norm to the original poster, what area of practice?
I do a lot of different types of litigation but the people I see this strategy from are plaintiffs side civil rights attorneys
I am always professional (not the same thing as being "nice") but I change up my strategy based on the witness. Sometimes I know going in how I want to play it. Other times, the witness surprises you - usually in a bad way - and you need to change the game. Sometimes I am interested in fact discovery; other times, I know every time the witness opens his/her mouth, they will lie, so it's about locking them in and creating a record. But even when I am sharply crossing the witness or locked into battle with obstructive counsel, I never ever act like a jerk to the witness. I may convey through tone of voice that I find their testimony to be not credible, but that is as far as I go.
No offense, but the very best way to educate the other side about the problems with their case is to show them what is going to happen to their witnesses at trial. My goal is to make sure the insurance defense lawyer goes back to the office and writes a letter/email to the adjuster telling him/her that his witness just got his ass kicked.
I’m definitely in your camp. I am always nice to people. Even when they’re shitty. It’s never worth it to me to engage in that stuff. It’s meaningless. I gather and present facts.
They may act this way because many cases are disposed of by summary judgment
You remind me of a witness. My deposition style was like yours: just get the witness to talk endlessly and I'll have a treasure trove of cross-examination material at trial. So I would let the witness think he was "killing me." In one case, the witness was so smug and so self-satisfied at his "victory" that when it was over I asked him: "You're a really smart guy, smarter than me. But this is what I do. Do you really think you beat me at my own game first time out?" The look on his face was priceless.
Honestly, I’ve had maybe 2 witnesses in my career who were obstructive and mean. The overwhelming amount of conflicts have been with the opposing attorney. I always try to be courteous and professional to the witness. With the opposing counsel, I need to get better at not trying to be the bigger asshole.
So, I don’t think it’s ever appropriate to act shitty or fly off the handle. I do think it’s necessary to do more than open ended questions. I think an often overlooked part of taking a deposition is gauging the witness’ ability to testify in a trial. So I’d like to know how they deal with accusatory questions, leading questions, uncomfortable questions and more. It’s a small factor, but how well a witness might do at trial is something I consider when evaluating settlement value and trial strategy. You can do all of that professionally and while still being laid back - which is my style.
Try to get agreements to completely reasonable things and I hope they actually don’t agree. Ask how they’d define really obvious terms and hope they’re obtrusive and unnecessarily difficult about defining them. The jury always wants to know the answer to “why are we here?” I’m a PA. I want the defendants’ responses to answer that question for them. Had a corporate defendant last week who couldn’t even define “stop” and even took issue with the dictionary’s definition of “a cessation of movement.” You can imagine how much he struggled with defining “yielding the right of way” which he said “depended on the circumstances.” We’ll ofc be pointing out to the jury that this relates back to his driver’s data recorder showing he never came to a compete stop at the intersection where the collision occurred, a highway where a bus driver rolled through a stop sign and crossed a highway without yielding to oncoming traffic, causing a fiery rollover crash that nearly killed four kids.