Sometimes it is hard for lawyers to get an answer out of a witness. The lawyer may hone in on a particular issue, start to dig a little deeper, and suddenly the witness is fidgeting and pausing and hedging. All of a sudden, the witness is not even trying to answer the questions the lawyer is asking. For example:
Q: You were present at the meeting on August 14, 2005, weren’t you?
A: “I was traveling a whole lot that month.”
It’s an answer to a question that wasn’t asked. So the lawyer starts again.
Q: Let me try again. Were you present at the meeting on August 14, 2005?
A: “You know, I don’t remember what I did that day.”
Does the lawyer give up at this point? Of course not. An experienced lawyer might say, “Thanks for that, but you’re still not answering my question. I’m going to ask again. . .”
And so on. Does this sort of hedging by a witness ever work? Every once in awhile, it probably does. A skillful lawyer will keep asking the question he or she wants answered until the witness answers it. They will ask again and again. Usually by the fifth or six time, the witness will start getting the idea: there’s nowhere to hide. Sooner or later, the witness is going to have to answer the lawyer’s questions.
What if the witness is a particularly good evader? In the above example, the witness’s hedging was obvious. Sometimes it isn’t. One thing a lawyer can say about deposition witnesses: many of them are basically honest, especially when they’re under oath. Maybe that’s why when they are employing the tactic of answering while not answering the question, they feel a little guilty at some level about giving an answer that is not completely correct. It is this guilt that leads many witnesses to do something that will tip the lawyer off to their hedging. It’s like the “tell” of the poker player. If the lawyer watches for these tells—these unconscious signs and signals—the lawyer will be put be on notice that there is more to the answer than what the witness is giving.
What does the lawyer watch for? Some witnesses might tip off the lawyer non-verbally—there might be a hesitation in their answer, perhaps a glance towards the opposing lawyer or at the table, maybe an inability to look the lawyer questioning him or her in the eye when answering.
The more obvious examples are verbal. Experienced lawyers are on the lookout for answers that seem complete but really are not. Here is an example:
Q: Were you at the meeting?
A: “I don’t have a specific recollection of that.”
What is the word that clues the attorney in to the fact that the witness’s answer is incomplete? It is the word “specific,” of course: I don’t have a specific recollection of that. It implies that the witness has a recollection of some sort. That is where the attorney will head next.
“What recollection do you have of the meeting?” the attorney will ask.
Sometimes a witness will repeat the question back to the attorney in a way that will put the attorney on notice that he or she is not asking the question the right way.
Q: Were you at the meeting?
A: “No, I wasn’t at the meeting.”
Did you see the hedging? The answer implies that the attorney is asking the question the wrong way. If the attorney digs a little deeper, he or she will learn that the witness showed up after the meeting had ended, but was there with all the players just the same.
If an attorney’s question contains a factual assumption that is not quite right, witnesses can and will take advantage of it. Some of them, however, will not be able to keep themselves from tipping the attorney off as they are doing it.