Getting you to act like a normal person
At the start of a deposition, it is almost always the case that the witness—at least assuming he is represented by a lawyer or has been prepared by one—is hesitant and tight-lipped. That is because the witness is thinking about the instructions his lawyer gave him just before the deposition started: do nothing but answer the question as restrictively as possible, then stop, and be sure never to volunteer anything. That’s the standard instruction to witnesses. They almost all get it.
The goal of the attorney questioning the witness is to get the witness to forget what his or her lawyer has told him and to start acting like a normal person again as soon as possible. It’s easier for attorneys to do than you might think. That’s because the witness’s lawyer has instructed the witness to act in a way that isn’t natural. In his natural habitat, the witness is a social creature. He most likely responds to questions with more than hesitant, mumbled one-word answers. He’s been doing it for years and years. It’s a habit that’s so ingrained in the witness’s personality that the attorney questioning him can have him acting like a regular person again in no time.
How does the lawyer do it? The lawyer asks some open-ended questions. Here’s an example: “Tell me about the car collision, Mr. Smith.” Mr. Smith is going to look confused, because he has just been asked to violate every one of his lawyer’s instructions about how to answer a question. So the lawyer questioning Mr. Smith may say to Mr. Smith, “Just start at the beginning.” When he gives a couple of sentences, then stops, the lawyer will ask, “What happened next?” It’s another open-ended question. If this is done for a couple of minutes, everything the witness’s lawyer told him about not volunteering information will be out the window, a distant memory.
While the lawyer questioning the witness is trying to get the witness to loosen up and volunteer information, the lawyer on the other side of the table – the lawyer who’s instructing the witness not to volunteer information – generally will not sit back like a potted plant. No matter how often a witness’s lawyer says it, the witness is sure to forget the instruction to not volunteer information. In this case, the witness’s lawyer will try to be active. If an attorney is defending a deposition and the witness starts to answer a question that wasn’t asked, the attorney may speak up, and say something like, “That’s not the question. You’ve got to pay attention to what’s being asked. Now, listen to the question.”
If the witness answers a question and then keeps talking, same thing. “You’ve answered the question, Betty. You can stop. Wait for the next one.”
There are many situations like this in which an attorney remembering to stay active can become important to the witness’s well-being. An experienced attorney will remind his or her clients ahead of time that the attorney is the good guy, and if the attorney happens to get all over them during the deposition, it is only because he or she is trying to help.
Making you feel at home
Open-ended questions are one way attorneys get witnesses to open up. Another method for managing the witness is to make him feel comfortable. It is a well-known deposition strategy: playing nice even when the lawyer is not feeling nice.
Even though it is not the way to go in every deposition, there usually is no reason for the lawyer questioning the witness to be unfriendly, at least at the beginning of a deposition. It is at the beginning of the deposition that the lawyer’s kindness will have the greatest effect. That is when the witness is most nervous, and will be correspondingly most grateful that the attorney is not starting out like the fire-breathing lawyers he has seen in movies and on TV.
In the introductory questions, the lawyer will likely remind the witness that if he wants to take a break, just let the lawyer know and he can take a break. See how nice the attorney is? If the witness’s water glass is empty, the lawyer may ask him if he wants a refill. If the sun is in his eyes, the lawyer may ask if he wants to switch places with him.
Simple acts of kindness like these will go a long way to relieving some of the witness’s nervous tension. Nervous tension gets in the way of the lawyer’s deposition goals by causing the witness to clam up or to forget important details or to adopt a defensive, combative tone.