SC Lawyer, Sept. 2005, #2. Deposition tips your parents taught you.

AuthorBy David Paul Horowitz

South Carolina Lawyer


SC Lawyer, Sept. 2005, #2.

Deposition tips your parents taught you

South Carolina LawyerSeptember 2005Deposition tips your parents taught youBy David Paul HorowitzAlong with graying hair and creaky knees, aging brings with it the realization that your parents were very smart people. Long before you read To Kill a Mockingbird or saw your first episode of "L.A. Law," your parents knew you would one day be a lawyer. The proof? They told you nearly everything you need to know in order to conduct effective depositions (omitting only a few gems such as, "move to strike as non-responsive"). Sadly, several years of law school and countless hours spent with "more experienced" attorneys convinced you that lawyers are different from other people ("we teach you to think like a lawyer") and therefore should speak and act differently from other people. You listened to them and ignored what your parents told you. Big mistake. If you keep in mind what your parents told you and follow their advice, your deposition skills will rise to new heights.

For those of you who have forgotten, here is what your parents told you:

"You catch more flies with honey than vinegar"

This is an oldie, but a goodie, and the one most often forgotten. Witnesses either believe that they are there to "tell the truth, the whole truth and nothing but the truth" or believe that you, as opposing counsel, are Satan's representative on earth. Whichever of the two categories of witness you are facing, being nasty and unpleasant will not help you. Many attorneys believe wrong, that being a nice person can ruin a legal career. Nothing is further from the truth. Your parents were right all along, so keep the following points in mind:

Outside of the people attending the deposition, no one will ever know if you are nice (although the court reporter will remember, and may gloss over some of your mistakes, and correct some of your malapropisms when producing the transcript). Relaxing the witness is a good thing; engaging the witness in a conversation, on record, is even better. Almost everyone is more giving and forthcoming when relaxed. Other than lawyers, everyone else in the world engages in conversations, not rapid-fire questions and answers (forget how you try to converse with your spouse or significant other). Fighting with the witness breaks the flow of your examination. It is difficult enough to remember to ask necessary questions and follow up on new, relevant, areas of inquiry without getting involved in jousting contests with the witness. Remember, it is your examination: organized, well-thought-out, clear deposition questions that elicit a series of non-responsive answers will hurt the witness at trial. If your goal is to prove that you are smarter than the witness, you will lose an important advantage. Ninety-nine times out of 100, a witness comes into deposition already believing you are smarter. This advantage is yours to lose. When it is absolutely necessary to right with the witness, remember there is a record being made. Know when you are on and off the record, and, when on the record, keep your words neutral (making faces and rude gestures will not appear in the transcript, but can still come back to haunt you). "Don't take no for an answer"

Actually, your parents meant to say, "Don't take 'I don't know' for an answer." While some witnesses believe that saying, "I don't know" makes them appear stupid and, consequently, will not answer that way (even when they truly don't know), many other witnesses fall into a gentle patter of answering many questions you can ask to elicit meaningful information:

If you don't know the information now, did you once know it? If you don't know, who would know? If you don't know the name of a person who would know, is there a person with a particular job title or...

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