Silence Is Your Friend: Pauses Have Power

• Pages: 30-31
• Date: 01 October 2024
• Author: Hon. Mark A. Drummond (Ret.)
• Subject Matter: Civil Law

By Hon. Mark A. Drummond (Ret.), Litigation News Associate Editor

Silence is Golden — Proverb: Ancient Egypt

No word was ever as effective as a rightly timed pause.

— Mark Twain’s Speeches(1923 ed.)

s trial lawyers, words are our stock in trade. We have

many tools at our disposal for persuasion. In addition

to our words, we have exhibits, demonstratives, and

the emotion we put into our words. However, this

article is about a little talked about tool in our arse-

nal. The tool of silence. Silence can aid us in three distinct areas.

Depositions

Many times, just being silent gets you more information. It is

the old reporter’s trick. You just throw a good short, open-ended

question out there and then shut up. You just sit there…maintain-

ing eye contact…and just nod…and nod…and nod. Most people

hate silence, especially while under pressure.

Law enforcement agents know that silence is an effective tool

Silence Is Your Friend: Pauses

Have Power

for investigations. Silence is uncomfortable for many peo-

ple. They will want to “break” the silence, and many times

useful information will come out. However, it takes disci-

pline to remain silent.

The inexperienced advocate will ask a question, break

eye contact, perhaps write a lengthy note and be thinking

of, or looking at, their next question. All this activity takes

their focus off the deponent. When the inexperienced advo-

cate is doing this, that, or the other thing, the pressure less-

ens on the deponent.

The experienced advocate during the fact-gathering

phase of the deposition will ask a broad, open-ended ques-

tion to get the most information, such as, “List for me

everything you did after getting this text.” They will main-

tain eye contact and just nod as the deponent starts listing

each item. There is no need to break eye contact because, if

the deponent gives a long answer, the attorney can ask the

reporter to read back the answer. To make sure it is “every-

thing,” experienced counsel will then ask, “Anything else?”

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Published in Lit igation News Volume 5 0, Number 1, Fall 2024. © 2 024 by the America n Bar Associati on. Reproduced wi th permission. A ll rights reserv ed. This informati on or any portion t hereof may not be copi ed or

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