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Effective Deposition Strategy and Dealing with the Evasive, Non-cooperative Witness

By Phillip Miller | May 11, 2021 | Trial Tips

Phillip Miller

“Wise people are fools if they cannot adapt to foolish people.” –

Michel Eyquem de Montaigne[1]

Introduction

Laziness. You’ve taken this deposition before (in your head, or in another case) and everything went great. This time the witness seems unmanageable. You’re doing everything right, but getting nothing. The most obvious conclusions that favor your case become muddied responses that have no value.

This paper deals with dealing with the witness (perhaps a corporate representative) where the witness, for whatever reason, will not provide reasonable, fair testimony. We will categorize and define the most common evasive, uncooperative behaviors and provides suggestions for what to do when they are encountered in a deposition. While the focus of this paper is on depositions of the corporate representative deposition (FRCP 30(b)(6), the techniques work well with other witnesses as well.

Cicero wrote, “If the truth were self-evident, eloquence would be unnecessary.”[2] The truth, unfortunately, is never evident when a corporate representative is evasive or non-cooperative.

In the following pages we will discuss:

Specific techniques (core skills) for dealing with the evasive witness, and

The most common evasion techniques with examples, including-

  1. The witness who responds with “I don’t know”, “I don’t know who would know”, “I never heard of that”, “I can’t answer that”, or “I am not sure”.
  2. The witness who wants to ask you to define your terms.
  3. The witness who wants to control the word choice of your questions, e.g. “That’s just a guideline, not a rule”.
  4. The witness who says they don’t understand the question.
  5. The witness who tries to avoid being pinned down and responds, “for the most part”, “pretty much all”, or “not necessarily”.
  6. The witness who “doesn’t remember” or “isn’t sure” about dates, times, distances, or amounts.
  7. The witness who repeatedly gives Long Narrative Responses.
  8. The witness who constantly lays down “rabbit trails”.
  9. The witness who interrupts the question with his response

Every deposition plan should anticipate the potential encounter with an evasive, non-cooperative witness. The truth is only self-evident if we anticipate non-responsive answers and devise alternate questions and approaches to deal with them. You must anticipate evasive responses and have a practiced, written strategy to deal with them on your case critical issues and questions.

The following pages include examples of effective techniques in a variety of circumstances, but you cannot take any of these examples and expect them to be the “silver bullet” in one of your cases, unless you have put the time in to make sure it will work. The harder you work, the “luckier” you will get.

The “Standards” Deposition[3]

A “Standards” deposition will include questions that do one or more of the following:

  1. Elicit testimony that a particular standard of conduct is important.
  2. Elicit testimony that a particular standard of conduct has been the known standard of conduct for more than XX years.
  3. Elicit testimony describing why this standard of conduct is important.
  4. Elicit testimony that the defendant expects others to comply with this standard.
  5. Elicit testimony that not complying with this standard of conduct is negligent/unsafe/improper.
  6. Elicit testimony that not complying with this standard of conduct is reckless.

In most cases there are common sense, statutory, regulatory, or company policies that define what conduct is accepted, required, or the norm. “Is it important to hire safe drivers?” or “Is it important to protect a fetus from group B strep?” should not get a “no” response from any witness. Unfortunately, the probability exists that a witness may answer these questions with something other than an unqualified “yes”. The hedging, evasive answer avoids the truth and requires that we must anticipate and be prepared to deal with the evasive, non-cooperative witness.

Mastering the Evasive witness requires solid cross-examination and examination techniques, along with the discipline required to properly “set-up” a witness for case critical questions.

There are three core skills you must master to deal with the evasive, non-cooperative witness. First, you must understand and design your examination incorporating much of what we know is effective in cross-examination. Second, the skills of exhaustion, boxing-in, and restating and summarizing must be incorporated into each deposition with an evasive witness. Third, you must demonstrate forethought and patience in the “set-up” of the witness for the critical pieces of your examination. We will deal with each of these concepts before discussing basic categories of problematic witness responses and the strategies you may adopt to counter them.

Core Skill 1: Depositions of evasive, uncooperative witnesses depend on effective cross-examination skills.

The depositions of evasive witnesses (including experts) often are reduced to one or both of the following: (1) a frustrating dialogue with a witness where the witness will not agree or will re-define and qualify any point you attempt to make, or (2) the witness continually introduces new concepts, facts, or opinions so it seems impossible to get closure on any point or issue.

If opposition witnesses were fair and honest, it would be reasonable to expect to prove facts (or theories) favorable to your case such as:

  • The witness agrees with certain facts proven by your witnesses and/or elemental to your case.
  • The witness respects the opinion, qualifications, or training of one or more of your witnesses.
  • One or more standards apply to the conduct of the defendant.

Unfortunately witnesses designated by the defendant under FRCP 30(b)(6) are likely to be coached and can be hostile, difficult, and evasive. Before deposing a witness who is likely to be difficult, you must analyze what can reasonably be accomplished with this witness, and the questions and answers that will be required to succeed. This means writing out the questions you will ask and alternative follow up questions based on the possible responses. Let’s talk about how and where to Start.

First, marshal the facts and standards that you can use to build toward your ultimate question.

As an example of marshalling facts and standards, let’s consider the Trucking Industry. The trucking industry is regulated by Federal Motor Carrier Safety Regulations (FMCSR), 49 C.F.R. 390 §§ et seq. and every motor carrier has multiple copies of these regulations in their possession, incorporates the regulations into their training and testing of drivers, etc. The FMCSR section 390.11 mandates that “It shall be the duty of the motor carrier to require observance” by its drivers of all duties or prohibitions imposed by the regulations. Included in the regulations are multiple examples of standards of conduct that may be relevant in a negligence action, for example:

  • A motor carrier “shall not require or permit” a fatigued or impaired driver from operating a motor vehicle (§ 392.3);
  • “No motor carrier, its agents, officers, representatives or employees shall make or cause to make” intentionally false statements on any report or record including the daily log (§ 390.35; § 395.8);
  • Nor shall a motor carrier “permit or require a driver” to drive in violation of the hours of service regulations (§ 395.3); and
  • A motor carrier “shall not aid, abet, encourage, or require” its employees to violate the rules of the FMCSR (§ 390.13).

With this kind of prior research and study, you may have identified several standards that are helpful to your case and that the opposition witness should admit if they are honest. However, you should not assume that an opposition witness will rollover and admit these standards. The question “Your driver violated Federal Motor Carrier Regulations while he was under your employ didn’t he? ” is unlikely to get you an unqualified “Yes”. It’s a big question, encompassing a lot of facts, and there’s lots of wiggle room for the witness. You must “set-up” the witness with a series of admissions or commitments that will ultimately get you to your goal.

Second, don’t go immediately for the killer question. Take the time to build toward your ultimate question with multiple questions, each question about one fact.

Questions that include one and only one fact is the technique that gives you the most control of a witness.[4] You must ask about facts, not conclusions, when you want to control an evasive, non-cooperative witness. The witness will never agree to your conclusions, and their disagreement with you on any point may seem completely reasonable unless there has been the proper “set-up” (see the following questions and the next section dealing with “set-up”). The advantage of the “one fact – one question” technique is that when a witness “runs”, i.e. they try a long non-responsive narrative; the question can be repeated easily again and again. Each “run” makes the witness appear less credible and frequently results in the witness admitting the fact imbedded in the question. Stringing together multiple questions that are “one fact-one question” allows the jury to derive larger, case-critical conclusions that are inescapable, even if unstated.

As an example, assume you would like the jury to conclude that a trucking company hired an unsafe, dishonest driver who falsified logs and although they knew or should have known, they did nothing. Assume further that you want to try and prove this through an opposition witness. To get the answer you want to this question, you must break down this larger question/issue into short questions, one fact-one question, that are sequenced to build on one another and lead to your ultimate goal. Along the way you must be prepared to repeat the question when the witness runs, or employ some of the other techniques discussed in this paper.

Q. The Federal Motor Carrier Safety Regulations apply to your company, don’t they?

Q. And you are required to see that your drivers comply with the Federal Motor Carrier Safety Regulations?

Q. You train your drivers on the Federal Motor Carrier Safety Regulations, don’t you?

Q. The Federal Motor Carrier Safety Regulations require drivers to accurately complete their logs?

Q. And it would be a violation of the Federal Motor Carrier Safety Regulations if a driver’s logs did not accurately reflect his travels?

Q. Is it important to your company that your drivers’ logs accurately reflect their travels?

Q. Why is it important?

Q. You train and test your drivers on their understanding of the Federal Motor Carrier Safety Regulations, correct?

Q. Some of that training and testing includes the accurate completion of logs doesn’t it?

Q. And your driver Mr. Hogan received this training and testing.

Q. Your company required Mr. Hogan to turn in his logs every week.

Q. In fact, Mr. Hogan wouldn’t get paid unless he turned in his logs.

Q. Your company could review Mr. Hogan’s logs at any time if they chose to do so.

Q. Mr. Hogan was never disciplined or counseled for a log violation was he?

Q. You have a copy of Mr. Alstadt’s review of the Hogan logs.

Q. In that summary Mr. Alstadt reviewed the last 6 months of logs before this wreck.

Q. Mr. Alstadt noted log violations for hours of service.

Q. Mr. Alstadt noted instances where Mr. Hogan said he was one place and his gas receipts showed he was at another location.

Q. Mr. Hogan’s logs show more than 50 log violations during the 6 months prior to this wreck don’t they?

Q. On 10 of these log violations Mr. Hogan misstated how many hours he drove in a day, didn’t he?

Q. On another 10 of these log violations he reported in his log that he was at one place and the gas receipts said he was another place, isn’t that right?

The impact of this sequence of questions and facts allows the jury to conclude, without you telling them, that this trucking company hired a driver who blatantly lied on his logs and they took no action to stop him or discipline him.

“Much wisdom often goes with fewer words.” –Sophocles

Short sentences, simple words are needed. When structuring your questions (one fact – one question or otherwise) your words and sentence structure must be short, precise, and simple. This simple sentence structure makes it easy to repeat the question, and clear for the jury when the witness attempts to be evasive. You must abandon long, compound sentences if you want to control a witness. You can get the same content by writing 2 or simpler sentences. The fewer words the better. Even when reduced to the fewest words you can imagine, are the words chosen the best words for what you are trying to accomplish? If any of your word choices are potentially argumentative or unclear, consider an alternative.

Asking about facts, rather than conclusions or opinions, will give you good control of any witness, but you need to be prepared to deal with the evasive witness who repeatedly will try to avoid a truthful response to your question. Here are the techniques to control that kind of witness:

  • Repeat the question – when the witness is non-responsive, repeat the question (again and again). The repetition of the question makes the witness progressively uncomfortable, and sends a clear message to the jury.
  • Throw out the trash – when the witness gives an answer that is non-responsive say “Thank you Mr. Witness, but I didn’t ask you about (topic used by witness in his non-responsive “run”), I asked (repeat the original question)?
  • State the opposite – when the witness is non-responsive state the opposite of what the truthful answer is, e.g. “Are you saying it’s not a violation of the Federal Motor Carrier Safety Regulations if a driver’s logs don’t accurately reflect his travels?”
  • “That’s a no/yes”when the witness is repeatedly non-responsive, include the correct answer in the question, e.g. “Then that’s a yes, it is a violation of the Federal Motor Carrier Safety Regulations if a driver’s logs do not accurately reflect his travels.”

Core Skill 2: The skills of exhaustion, boxing-in, and restating and summarizing must be incorporated into each deposition with an evasive witness.

I. How to effectively use Exhaustion

If you get an equivocal answer from a witness, exhaustion is used to fully explore and discover anything they might be trying to hide. It also serves to “teach” the uncooperative witness that certain responses will not work. Instead, the equivocation leads to more and more tedious questioning that forces the witness to say everything they know and ultimately respond “That’s all.”

What is common when preparing for trial and reviewing transcripts is that “holes” are discovered where the witness’ testimony on one or more critical points was not exhausted or that a question was not explored in enough detail to predict what will be said at trial. This generally occurs because there was no concentrated, consistent effort by the examiner to make the witness say they have nothing else. In the case of experts this occurs by letting the witness’ answer drive the examiner to ask about a new topic before exhaustion has been accomplished on the current topic (the use of rabbit trails by the witness).

Effective exhaustion is the use of simple follow-up questions like the following after each answer:

  • “What else?”
  • “Tell me more.”
  • “Did anything else happen?”
  • “Was anything else said?”
  • “Did you observe anything else?”
  • “Do you remember anything else?”
  • “Are you sure that’s all you remember/saw/heard?”
  • “Have you told me everything you remember about the accident?”
  • “Is there anything else you think I need to know?”
  • “Is there anything else you know or remember that you would think would be important to know if you were asking the questions?”
  • “Is that everything?”
  • “Have you told me everything?”

A second key to exhaustion is that the examiner must not allow the witness’ answer to dictate the examiner’s next topic until exhaustion has been accomplished with the current topic. Witnesses often take control of the direction of a deposition by mentioning facts, opinions, or perspectives that are so tempting that the examiner goes to that “rabbit trail” before he/she has exhausted the witness on the original topic and has confirmed exhaustion on that topic. Exhaustion requires the discipline to make sure you have all of the witness’ knowledge on a topic and confirming that you have it all before moving on to a new area.

Example: Failing to Exhaust Because of Rabbit Trails

Q. Give me all the reasons you believe Dr. Smith conformed to the standard of care.

A. He discussed the alternatives to surgery with the patient, he identified the median nerve at the time of the surgery which was abnormally small and congenitally demyelinated (this part of the answer has nothing to do with why the witness believes Dr. Smith conformed to the standard of care, but creates two rabbit trails for an examiner whose original goal was to exhaust “all the reasons Dr. Smith conformed to the standard of care”), he protected the median nerve with a retractor and he identified the injury to the median nerve in the immediate post-operative period.

Q. What do you mean abnormally small? (the examiner begins following the first rabbit trail)

A. Well, clinically we rarely see a median nerve under 40mm, and this apparently was somewhat less than that?

Q. How do you know that? (the examiner continues to follow the first rabbit trail)

A. Well, the Benz retractor is 40mm at its tip and the operative note says it covered the nerve.

Q. Well the fact that a median nerve is less than 40mm doesn’t necessarily mean it is fully functional does it?

A. It may or may not be, it depends on different factors.

Q. What would those factors be? (the examiner begins following a new rabbit trail and still hasn’t exhausted the witness on all the reasons Dr. Smith conformed to the standard of care)

Exhaustion cannot be accomplished when the examiner

moves to a new topic before completing the exhaustion.

Example: Exhaustion done correctly[5]

Q. Give me all the reasons you believe Dr. Smith conformed to the standard of care.

A. He discussed the alternatives to surgery with the patient, he identified the median nerve at the time of the surgery which was abnormally small and congenitally demyelinated, he protected the median nerve with a retractor and he identified the injury to the median nerve in the immediate post-operative period.

Q. Have we now covered all of the reasons why you believe Dr. Smith conformed to the standard of care?

A. I think for the most part, yes.

Q. Well I want to make sure, and when you say for the most part, that implies to me that there may be more. Are there any more reasons why you believe Dr. Smith conformed to the standard of care other than the ones we have covered?

A. Well, now that I think of it there is one more. The use of the longitudinal incision was the appropriate incision to use here.

Q. Have we now covered all of the reasons you believe Dr. Smith conformed to the standard of care?

A. Yes.

Q. Is there any other information you need to know before you can fully answer this question?

A. No, I have all the information I need.

Q. Is there anything else you have asked for, asked to see or review, before today’s deposition that you haven’t been given?

A. No.

Q. What else would you need to know before you can say I have given you all my opinions as to you why you believe Dr. Smith conformed to the standard of care?

A. Nothing else.

Q. So with that in mind, have you now given me all of the reasons as to why you believe Dr. Smith conformed to the standard of care?

A. Yes I have, there is nothing else.

Now, after exhausting the witness on the original question the examiner can ask about the “abnormally small and congenitally demyelinated” rabbit trails created by the witness. It is fine to run down rabbit trails presented by witnesses in depositions, but only after you have accomplished the goal you were striving for first. To do otherwise is to cede control of the deposition to the witness, and fail to accomplish your original purpose, i.e. to exhaust the witness on a particular topic.

II. How to effectively use Restating and Summarizing

Exhaustion of a particular topic may require many questions and many pages in a transcript. If left in its raw form, the testimony maybe unmanageable and unusable with a jury or court. Restating and summarizing condenses testimony that may be spread across several pages and makes it more concise. The concise restatement and summarization of testimony creates sound bites for use with motions, mediation presentations, and trial presentations[6]. They also make it possible to impeach the witness if necessary. Restatement and summarization are meant to be used in combination with exhaustion, no matter what exhaustion preceded the summarization. After restating and summarizing the deponent’s testimony, there should always be a follow up question like “Is that everything?”, “Is that all?”, “Is there anything else?” or something similar.

Beginning to use the techniques of restating and summarizing may not seem natural when most of the time you are asking questions. Here are some lead-in statements that you can use to begin your restatement and summarization:

  • “Let me understand what you have told me.”
  • “What you are saying is…”
  • “Let me make sure I get it.”
  • “Are you saying that…?”

Example: Restatement and Summarization[7]

Q. So let me make sure I understand what you have said. You indicated that Dr. Smith conformed to the standard of care in several ways, correct?

A. Yes

Q. The first way was in advising the patient of her alternatives, right?

A. Yes.

Q. The second was in identifying the median nerve at the time of the surgery, right?

A. Yes

Q. The third way was in identifying the injury to the median nerve in the initial post-op period, right?

A. Yes.

Q. Fourth was using a retractor to protect the nerve, right?

A. Yes.

Q. Fifth was the type of incision used, correct?

A. Yes.

Q. Have we now covered all of the ways as to you why you believe Dr. Smith conformed to the standard of care? (exhaustion)

A. Yes.

Q. Nothing else? (exhaustion)

A. Correct, there is nothing else.

III. How to effectively use Boxing In

Boxing in is used in two circumstances and consists of two different techniques. First, boxing in by bracketing is used to commit the witness to facts when the witness is trying to be evasive by saying “I don’t know”, “I’m not sure” or “I don’t remember” regarding dates, speed, quantities, or something quantifiable. The second form of boxing in (FWD – facts, witnesses, documents) is used when you want to reduce the risk of any change in testimony after a witness has told you all they recall, all they know, all of their opinions, or that they cannot remember.

Boxing by bracketing is accomplished by using dates, events, distances, time, or anything that can be quantified.

Example: Boxing in by Bracketing

Q. How far apart were your truck and Mrs. Agan’s car apart the accident?

A. I don’t know.

Q. Was it at least 10 feet?

A. Sorry, I’m not really sure.

Q. Would it have been at least 5 feet, say the distance between you and me?

A. Yes, that looks reasonable.

Q. Okay, then could they have been more than 25 feet apart, say the length of this room?

A. No, not that far.

Q. Well how about 15 feet; say from the wall to the end of the table?

A. No, probably closer to that.

Q. So can we say that after the accident, your truck and Mrs. Agan’s car were somewhere between 5 and 15 feet apart, is that fair?

A: Yes I would agree.

Boxing in by FWD (facts, witnesses, documents) is a technique that forces the witness to commit to testimony and/or describe any and all possible circumstances that might allow their future testimony to change. Witnesses explain their change in testimony by using one or more of three broad categories of information that a witness didn’t have or consider during their deposition. These three broad categories are: facts they did not know or recollect, witnesses/individuals they had not spoken to at the time of the deposition, and/or documents they had not seen, recollected or considered. If none of those things exist, there is no basis for the witness’ testimony changing. The use of FWD occurs after a witness has been exhausted, however exhaustion is also used at the end of the FWD questioning, e.g. “Is that all?”, “Are you sure?” etc.

Example: Using FWD to box-in a failure to recollect

Q. Did you see Mr. Smith’s car before impact?

A. Well, I don’t recall.

Q. Are you sure?

A. Yes.

Q. If you were provided facts about the color or model would that make a difference? (asking if “new” facts might change recollection)

A. No.

Q. If you were provided facts about the position and description of the other cars, would that make a difference? (asking if “new” facts might change recollection)

A. No.

Q. If you had a conversation with one of your passengers about what they remember or what they heard your say or what they saw you do, would that possibly allow you recollect something about seeing Mr. Smith’s car? (asking if talking to a witness might change recollection)

A. No, I don’t believe so.

Q. If someone showed you photos of the scene would that possibly allow you recollect something about seeing Mr. Smith’s car? (asking if reviewing a document might change recollection)

A. No.

Q. If someone showed you the officer’s report of the accident would that make a difference? (asking if reviewing a document might change recollection)

A. No, I don’t recall.

Q. So, you have no recollection of seeing Mr. Smith’s car before impact? (restating and summarizing)

A. Correct.

Q. And there are no facts about the road conditions, or other cars, or location that would change your recollection? (restating and summarizing)

A. Right

Q. And there are no witnesses or other people you know of that if you talked to them might change your recollection? (restating and summarizing)

A. None I can think of.

Q. Are you sure? (exhaustion)

A. Yes.

Q. Looking at accident reports, photos, or other documents won’t change your recollection? (restating and summarizing)

A. No it won’t.

Example: Using FWD to box-in an Expert on Opinions

Q. Have we now covered all of the ways as to you why you believe Dr. Smith conformed to the standard of care? (exhaustion)

A. Yes.

Q. Nothing else? (exhaustion)

A. Correct, there is nothing else.

Q. Are there any facts that you might learn from Dr. Smith that might change your opinions or cause you to have additional opinions? (asking if “new” facts might change opinion)

A. No.

Q. Are there any facts in the medical records that are part of this case, that might change your opinions or cause you to have additional opinions? (asking if any documents might change opinion)

A. No.

Q. Are there any documents that you have not reviewed, that if provided might change your opinions or cause you to have additional opinions? (asking if any documents might change opinion)

A. No.

Q. Are you sure? (exhaustion)

A. Yes.

Q. If you had a conversation with one of your colleagues about this matter, is it possible that they might say something that could cause you to change your opinion or have additional opinions? (asking if talking to a witness/colleague might change opinion)

A. Possibly.

Q. Who would that be?

A. My partner and mentor Dr. Lawson.

Q. Why him?

A. He has 35 years of experience with carpal tunnel surgery.

Q. Anyone else? (exhaust)

A. No.

Q. Are you sure? (exhaust)

A. Yes.

Q. So, there are no conversations with Dr. Smith that would change your opinion? (restating and summarizing)

A. No.

Q. And there are no facts in the medical records that would change your opinion? (restating and summarizing)

A. No.

Q. And there are no documents that you can think of that would change your opinion? (restating and summarizing)

A. No.

Q. And the only thing you can think of that might cause you to change your opinion or add to them would be a conversation with your partner Dr. Lawson? (restating and summarizing)

A. Yes.

Core Skill 3: Depositions of evasive, uncooperative witnesses require that you spend more time thinking about the “set-up” than the “killer” question you are dying to ask.

“We are so vain that we even care for the opinion of those we don’t care for.”

Marie Von Ebner-Eschenbach[8]

No one wants to look like a fool or incompetent while under oath, and no one wants to contradict themselves, especially under the circumstances of a deposition with witnesses and a printed record. However, unless someone has been clearly and firmly committed to a position it may be easy for them to rationalize an answer that is inconsistent with their prior testimony; an evasive, non-cooperative response. With this in mind, the second concept that must be integrated into the deposition of such witnesses is that case critical questions only come after the witness has committed him or herself to positions that make a contradictory response wholly inconsistent with the “commitments” they have made.

The commitments to be elicited from a witness should take place on multiple levels. Earlier we discussed the commitments elicited from a witness as the prelude to questions about a driver who had multiple log violations but had never been disciplined. This kind of “set-up” will occur with each line of inquiry where you are attempting to establish a standard, but there should be an entire different set of “commitments” as part of the “set-up” before you ever get to the real subject matter of the deposition.

In any FRCP 30(b)(6) deposition, there will/should be a notice of deposition designating the areas where the witness will give binding testimony on behalf of the corporation. The first exhibit to such a deposition, and the object of a series of “set-up” questions, is the notice itself. For example:

Q. I am handing you the notice of deposition for this deposition, have you seen it before?

Q. You understand that in a deposition like this, you are representing the corporation, not yourself as an individual.

Q. This notice says that the corporation shall designate the person “with the most knowledge concerning the following designated matters and as to such information that is known or reasonably available to the organization”

Q. Are you the person who has been designated by Start Transport to speak on its behalf with respect to:

  1. Hiring/Screening of Employees
  2. Safety/Accident Prevention and Reporting
  3. Driver Supervision/Inspection of Logs

Q. Why you?

Q. Are you the person at Start Transport who is the most knowledgeable with respect to:

  1. Hiring/Screening of Employees
  2. Safety/Accident Prevention and Reporting
  3. Driver Supervision/Inspection of Logs

Q. Are there areas regarding Hiring/Screening of Employees that you are not knowledgeable?

Q. Are there areas regarding Safety/Accident Prevention and Reporting that you are not knowledgeable?

Q. Are there areas regarding Driver Supervision/Inspection of Logs that you are not knowledgeable

Q. Is there any person at Start Transport who is the more knowledgeable than you are with respect to:

  1. Hiring/Screening of Employees
  2. Safety/Accident Prevention and Reporting
  3. Driver Supervision/Inspection of Logs

Q. Do you have full authority to speak on behalf of Start Transport with respect to:

  1. Hiring/Screening of Employees
  2. Safety/Accident Prevention and Reporting
  3. Driver Supervision/Inspection of Logs

Q. Do you understand that the answers you will give to our questions will be on behalf of Start Transport?

Q. Do you understand that all of the answers you will give to our questions will represent all of the information available to Start Transport?

Q. Are you aware the answers you will give to our questions will be binding upon Start Transport?

Q. Are you fully prepared to speak with respect to:

  1. Hiring/Screening of Employees
  2. Safety/Accident Prevention and Reporting
  3. Driver Supervision/Inspection of Logs

In the process of asking these questions, you may find that the witness provided will not be able to provide you with authoritative answers, they may legitimately answer “I don’t know” on areas which are case critical. If the witness’ answers indicate that he/she is not going to be able to give binding testimony, restate and summarize the witness’s inadequacies on the record, and adjourn the deposition until the corporation can provide a proper representative. You cannot proceed and expect to get useful, binding information.

Category 1 of Witnesses who are evasive and non-cooperative

The witness who responds with “I don’t know”, “I don’t know who would know”, “I never heard of that”, “I can’t answer that”, or “I am not sure”.

When you encounter a corporate witness who doesn’t know, or can’t answer a question you have two alternatives, depending on your strategy in the case:

  1. Nail down the fact that this witness doesn’t know something of importance; or
  2. Convince the witness that while he/she “may not know” or they are “not sure”, there is a plausible explanation/definition/standard that they will (inevititably) accept as true.

For either of these two strategic choices, you may choose to begin your questions with a review on the record of the questions and answers previously given that establish that the witness:

  • Is representing the corporation, not themselves as an individual;
  • Has been designated by the corporation as the person “with the most knowledge concerning the following designated matters and as to such information that is known or reasonably available to the organization”;
  • Is the person who has been designated by Start Transport to speak on its behalf with respect to:
    1. Hiring/Screening of Employees
    2. Safety/Accident Prevention and Reporting
    3. Driver Supervision/Inspection of Logs; and
  • Is the person at Start Transport who is the most knowledgeable with respect to:
    1. Hiring/Screening of Employees
    2. Safety/Accident Prevention and Reporting
    3. Driver Supervision/Inspection of Logs.

When you have strategically chosen to lock-in that the witness doesn’t know/doesn’t remember, etc. the second step is to restate and summarize the witness’ inability to answer, and then to make sure that this witness will not be able to change his/her testimony (box in the witness). Witnesses explain a change in testimony by using one or more of three broad categories of information that a witness didn’t have or consider during their deposition. These three broad categories are: facts they did not know or recollect, witnesses/individuals they had not spoken to at the time of the deposition, and/or documents they had not seen, recollected or considered. The acronym used to describe the process of boxing is FWD.

FWD serves to remind the examiner to ask the deponent whether there are any facts, witnesses, documents that might be the basis of the witness changing from “I don’t know” to something else. If none of those things exist, there is no basis for the witness’ testimony changing.

Example: Using FWD to box-in a representative’s response “I don’t know”, “I never heard of that”, etc.

(these questions are preceded by a restatement and summary of testimony by the witness that they were designated to speak for the corporation on this issue, that they are the most knowledgeable, etc.)

Q. You have told me that you don’t know of anyone in the corporation who does background checks on its childcare workers?

A. Well, I don’t recall.

Q. Are you sure?

A. Yes.

Q. If you were provided facts about what other childcare centers do, would that make a difference? (asking if “new” facts might change recollection)

A. No.

Q. If you were provided facts about what other units of Kid’s World do, would that make a difference? (asking if “new” facts might change recollection)

A. No.

Q. If you had a conversation with another employee or center manager about the hiring process, would that possibly allow you recollect something different? (asking if talking to a witness might change recollection)

A. No, I don’t believe so.

Q. Are there any policy manuals, training materials, or other documents that if you reviewed them would change your view on whether there is someone at the company doing background checks on childcare workers? (asking if reviewing a document might change recollection)

A. No.

Q. So, you have never heard of anyone doing background checks on childcare workers? (restating and summarizing)

A. Correct.

Q. And there are no witnesses or other people you know of that if you talked to them might change your recollection? (restating and summarizing)

A. None I can think of.

Q. Are you sure? (exhaustion)

A. Yes.

The second strategic option for the standards witness who “doesn’t know” or “isn’t sure” is to convince them or make them feel foolish for denying an obvious truth. An examples of each follows. The first is an excerpt from the deposition of a defendant truck driver who wanted to play ignorant about the known rules for left hand turns[9].

Q. Now Mr. tractor trailer truck driver, isn’t there’ll some rule or set of rules for drivers who have commercial driver licenses (CDL’s) to follow when they drive trucks?

A. Yes.

Q. What are those rules called?

A. I think they’re called “the Rules of the Road.”

Q. Good, now is there among these Rules of the Road that you know of a specific rule that deals with making a left-hand turn?

A. I’m not sure.

Q. Well, let’s see if this refreshes your recollection: isn’t there some rule in the Rules of the Road for truck drivers that addresses when it is safe and when it is not safe to make a left-hand turn across on-coming lanes of traffic?

A. I think so.

Q. Well, do you ever recall one of the rules of the road for truck drivers that says you should be very careful to avoid making such left turn maneuvers?

A. I think I recall that, yeah.

Q. Good, do you recall what the “No Left Turn Rule” says and why it says to not make a left turn across on-coming lanes of traffic?

A. I think the rule is because it is safer to make right turns than left turns because you will avoid the oncoming traffic.

Q. Well, what safety reasons are there for that “No Left Turn Rule?”

A. Well, you don’t want any oncoming car to hit your truck?

Q. And…is there any other safety reason for the “No Left Turn Rule?”

A. You don’t want your trailer load and cargo to get damaged.

Q. OK, what other reasons are there for the “No Left Turn Rule?”

A. Well, I suppose you don’t want other cars to get damaged.

Q. OK, are there any other reasons you can think of for the “No Left Turn Rule?”

A. Well, not right off hand, not right now.

Q. Well let’s just take a brief minute and think for a moment here… are there any other safety reasons you can think of for the “No Left Turn Rule” for truck drivers to not drive across on coming lanes of traffic?

[PAUSE]

Q. Having thought about it for over a minute can you think of any other safety reasons for the “No Left Turn Rule” for truck drivers?

A. I can’t think of any right now.

Q. Let me suggest one or two: isn’t one of the safety reasons for the “No Left Turn Rule” to prevent oncoming traffic from colliding with your truck?

A. Yeah, I think I just said that.

Q. Yes you did say that. What I am now asking you is that an additional reason for the “No Left Turn Rule” is not only to prevent damage to your truck and it cargo and the on-coming vehicles but also to prevent the loss of your life or that of the on-coming drivers; would you agree that preventing serious injury or death is another safety reason for the “No Left Turn Rule?”

A. Yeah I guess…yeah.

Q. And do you follow the “No Left Turn Rule” to avoid the death or serious injury of on- coming drivers as well as yourself?

A. I think so…

Q. Well, tell us why do you follow “No Left Turn Rule?”

A. For all the reasons I just told you.

Q. And one of the reasons you follow the “No Left Turn Rule” is to prevent serious injury or death is that true?

A. Yes.

Q. And you expect other truck drivers to follow the “No Left Turn Rule?”

A. Yeah.

Q. And is one of the reasons you expect other truck drivers to follow the “No Left Turn Rule” because it will avoid serious injury or death to you and to them?

A. Yes.

Q. Do the other drivers in your company follow the “No Left Turn Rule?”

A. I don’t know what they do.

Q. But you do expect them to follow the “No Left Turn Rule” for all the reasons you said including to protect their lives and your own, isn’t that true, sir?

A. Yes.

Q. You do expect not just truck I have been in a couple days ago backplane drivers but also automobile drivers and all drivers of all types of vehicles on the roads and highways you travel to follow the “No Left Turn Rule” don’t you?

A. Yes

Q. And one of the reasons you expect other drivers to follow the “No Left Turn Rule?” is, among other reasons, to protect your life as well as their own, correct?

A. Correct, yes.

Q. Would you agree with me that anyone who would intentionally ignore the “No Left Turn Rule” and ignore the safety reasons of protecting the lives of other drivers as well as his own life would be a reckless driver?

A. [after many objections and much dialogue and “colloquy”] I don’t know if I would call it reckless.

Q. Well what would you call the act of a driver of the truck who intentionally made a left turn in front of one coming traffic in direct violation of the “No Left Turn Rule?”

A. I’d say that would be a damn fool thing to do! [Followed by many objections, but no colloquy]

By building on facts (some of which were created by the defendant), the defendant truck driver who was initially reluctant to give testimony and who began saying “I’m not sure” ended up admitting both the standard that was desired (the “No left turn rule”) and that violation of the standard would be counter to his expectations of other drivers and “a damn fool thing to do”.

The next example is the witness who will not admit a standard/rule, an expert, from the same case as the example above with the “No left turn” rule.

Q. Did you write as part of your professional accident reconstruction reported opinion that “the truck driver’s actions were not a contributing factor” in this intersection collision?

A. Yes, I did, would you like me to explain?

Q. I will ask you that question momentarily, but for now, just try to follow my questions. Will you do that and try not to anticipate my next question? (this is an example of not ceding control to the witness as discussed in the following sections “Category 7” and Category 8”)

A. Sure.

Q. Thank you, now would I be correct in assuming that when we all get to trial you will give your professional accident reconstruction opinion consistent with what you wrote in your report?

A. Yes, of course.

Q. And, your professional accident reconstruction opinion at trial will also be consistent with your truthful testimony under oath today?

A. Of course.

Q. And, I would be correct to also assume from reading your 83 page report that you find no fault whatsoever on the tractor trailer truck driver (Mr. X) for the happening of this intersectional collision?

A. That is correct. May I explain.

Q. You may in just a moment, once I know what exactly you are going to say to the court and jury, OK? (this is another example of not ceding control to the witness as discussed in the following sections “Category 7” and Category 8”. The witness’s explanation will have nothing to do with your depositions goals, at least at this point.)

A. OK.

Q. So, getting back to your 83 page written report – even though you do not say it in exactly the words I will put to you now, I would be correct to assume that you will testify under oath at trial when defense counsel asks you questions that it is your professional accident reconstruction opinion that the truck driver in this case did nothing reckless, or negligent, or careless, or wrong which in any way was a cause in the happening of this intersectional collision, am I correct?

A. Yes, that is my professional opinion.

Q. And of course you know from your onsite inspection and review of the police report and the eyewitness statements and the deposition of the truck driver (Mr. X) that Mr. X admittedly made a left turn across 3 lanes of on-coming travel at a major intersection controlled by a stoplight which had a sign directly below it which said “No Left Turn” – you know that fact?

A. Yes.

Q. OK, now before I ask you to explain your professional accident reconstruction opinion that the truck driver did nothing wrong by turning left across 3 lanes of on-coming travel at a major intersection controlled by a stoplight which had a sign directly below it which said “No Left Turn”, I want to ask you one simple question: Did you in your professional accident reconstruction education, training and experience ever hear or read or learn about what has been referred to in a prior deposition as the “No Left Turn Rule”?

A. I don’t think I ever head of that rule?

Q. Well, did you read the deposition of Mr X, the defendant truck driver?

A. Yes

Q. When did you read it?

A. Last year.

Q. So, you read it before you wrote your 83 page professional accident reconstruction report?

A. Yes, of course.

Q. Of course, so you read where Mr X talked about the “No Left Turn Rule”?

A. Yes

Q. And, you read what Mr X said about the safety reasons for the “No Left Turn Rule” didn’t you?

A. Yeah.

Q. And, sitting here today with all of you 25 years of experience, education and training, you do not recall ever hearing any mention of or reference to the “No Left Turn Rule”?

A. No, I can’t recall.

Q. Well, if you can’t recall this “No Left Turn Rule” – does the safety reason for the “No Left Turn Rule” sound to you in your professional opinion to be worthy of consideration for any driver of any vehicle?

A. I don’t understand.

Q. Let me try to make it understandable to you – as a accident reconstruction expert you know there are Rules of the Road, correct?

A. Yeah

Q. As a professional accident recon expert you do recognize safety reasons for many rules of the road?

A. Sure.

Q. Can you think, from all your experience, training and education [on a LONG list of his credentials in his multi paged cv) what would be a safety reason for a “No Left Turn Rule” for tractor trailer drivers?

A. I can’t think of any right off hand.

Q. So, Mr. Riechert, from your education, training, experience, and long membership in several professional association such as ATARI (the Association of Traffic Accident Reconstruction and Investigation) you don’t recall ever hearing, reading or knowing about such a “No Left Turn Rule,” nor can you, as a self-professed accident recon expert who writes articles on safe driving, teaches truck drivers, lectures and consults with trucking companies, and as you told us earlier you do about 75 to 100 collision case investigations per year (mostly for insurance and trucking companies) for an annual income of approximately $300,000, you sitting here today after you investigated, researched and wrote your 83 page report and then prepared for today’s deposition by meeting with the defense lawyer at the scene yesterday, you can not think of any one good safety reason for such a “No Left Turn Rule”?

A. Correct.

In this examination the expert reconstruction expert took a position that there was no such thing as a “No Left Turn Rule”, and that he had never heard of it, nor could he think of any safety reason for it. Will he be a credible witness? Will his testimony be given any weight?

Category 2 of Witnesses who are evasive and non-cooperative

The witness who wants to ask you to define your terms.

One of the oldest witness tricks is to ask the questioner to define a term used in a question. It puts the witness back in control, gives he/she time to consider the question, and disrupts the questioners flow.

Approach A. Ask for and Adopt the definition used by the witness

The first, most natural technique is to ask the witness to define the term and then incorporate their definition into the question e.g.

Q. Wouldn’t you agree that it would be improper for a nursing home to hire an aide who had a past history of patient abuse?

A. What do you mean by patient abuse?

Q. What does patient abuse mean to you?

A. I guess it means hurting or injuring a patient.

Q. So, wouldn’t you agree that it would be improper for a nursing home to hire someone who had a past history of hurting or injuring a patient?

Approach B. Use the person’s life experiences to create a reasonable, fair definition.

Another more subtle method is to actually think about the witness as a person and the circumstances where they may have used the term themselves, using those life experiences to move the witness toward an honest answer.

Q. Do you agree that your company has a duty to hire safe drivers?

A. What do you mean by safe?

Q. Do you have kids who are in school?

A. Yes.

Q. When they leave for school or some activity, have you ever told them to “be safe”?

A. Yes.

Q. And you expected them to understand what that meant didn’t you?

A. Yes.

Q. So you have some idea what someone may be talking about when they use the words “safe drivers”?

A. Yes.

Q. One aspect of “safe driver” is that he/she obeys the speed limit, is that true?

A. Yes.

Q. Is it important that tractor-trailer drivers obey the speed limit?

A. Yes.

Q. Why is it important that tractor-trailer drivers obey the speed limit?

A. If they don’t they could be a hazard to themselves or others.

Q. Another aspect of “safe driver” is that he/she obeys the traffic laws, isn’t that true?

A. Yes.

Q. Is it important that tractor-trailer drivers obey the traffic laws?

A. Yes.

Q. Why is it important that tractor-trailer drivers obey the traffic laws?

A. If they don’t they could be a hazard to themselves or others.

Q. Another aspect of a “safe driver” is that they get enough rest while they are on the road, correct?

A. Yes.

Q. Someone who repeatedly got speeding tickets and had moving violations wouldn’t be a safe driver would they?

A. Someone who operated a tractor-trailer without getting the required rest wouldn’t be a safe driver either would they?

Q. So you would agree that your company has a duty to hire safe drivers?

Approach C1. Use a regulation or rule for the definition.

Q. Wouldn’t you agree that it would be improper for a nursing home to hire an aide who had a past history of patient abuse?

A. What do you mean by patient abuse?

Q. I am handling you a copy of State Regulation 1.11.7. I have highlighted the definition for patient abuse and it says: “Abuse means causing intentional pain or harm. This includes physical, mental, verbal, psychological, and sexual abuse, corporal punishment, unreasonable, and intimidation.” Is that correct?

A.  Yes.

Q. So, you would agree that the definition of abuse includes psychological abuse and intimidation?

A.  Yes.

Q. And you would agree that state regulations like this apply to your facility?

A. Yes.

Q: So, wouldn’t you agree that it would be improper for a nursing home to hire someone who had a past history of psychological abuse and intimidation of a patient?

Approach C2. Use a dictionary and/or thesaurus

Sometimes there isn’t a rule or regulation you can use, but the definition of a term is a key part of your case and your questioning.

Q. Would it be reckless to hire an employee with a history of patient?

A. What do you mean by reckless?

Q. Have you ever used a dictionary?

A. Yes.

Q. Let’s look up reckless. Here, it says, “marked by a lack of thought about danger or other possible undesirable consequences.” Would you agree that hiring someone with a history of patient abuse might show a lack of thought about possible dangers or undesirable consequences?

Q. (Using the thesaurus) Would it be (words from thesaurus –thoughtless, irresponsible, inattentive, hasty, rash) to hire an employee with a history of patient abuse?

Category 3 of Witnesses who are evasive and non-cooperative

The witness who wants to control the word choice of your questions, e.g. “That’s just a guideline, not a rule”.

Witnesses often will hear the words “standard”, “rule”, or “principle” and try to define their way around any direct response to a question, e.g.

Q. Mr. Lentz, wouldn’t you agree that the one of the principles of design is that the risk of severe injury or death is always unreasonable, and always  unacceptable, if it could be prevented or minimized by reasonable safety measures?

A. I think that is more of a guideline.

Q. So in your mind, it’s more of a guideline than a principle?

  • Alternative 1:
    • Q. Are guidelines important?
    • Q. Why are they important?
    • Q. If a guideline reduces the risk of serious injury or death, should it be followed?
    • Q. When is it OK to ignore a guideline?
    • Q. Do you expect others to follow guidelines?
  •   Alternative 2:
    • Q. When you use a word like guideline, would you expect other people to understand what you mean?
    • Q. You expect other people to assume that you are using the same definition they are, like what is in the dictionary?
    • Q. If the dictionary says “A standard or principle by which to make a judgment or determine a policy or course of action.” you would agree with that definition wouldn’t you?
    • Q. So based on the dictionary definition, a guideline is something that should be followed isn’t it?
    • Q. So Mr. Lentz, based on the definition of “guideline” wouldn’t one of the principles or guidelines of design be that the risk of severe injury or death is always unreasonable, and always unacceptable, if it could be prevented or minimized by reasonable safety measures?
  •   Alternative 3:
    • Q. When you use a word like guideline, would you expect other people to understand what you mean?
    • Q. There are words that mean the same thing as guideline aren’t there…they are called synonyms right?
    • Q. Let’s take a look at Roget’s Thesaurus; one of the synonyms for guideline is law, isn’t it?
    • Q. One of the synonyms for guideline is rule isn’t it?
    • Q. One of the synonyms for guideline is principle isn’t it?
    • Q. So based on the Thesaurus, a guideline is like a rule or a principle isn’t it?
    • Q. And you would agree that rules or principles of design should be followed, shouldn’t they?
    • Q. And if a product design has a potential risk for severe injury or death, the design and risks should be given careful consideration shouldn’t they?
    • Q. And if a product design’s risks for severe injury or death can be prevented, or minimized, they should be, correct?
    • Q. So Mr. Lentz, based on what you have told me, it would be wrong to design a product without giving consideration to the risks of the product causing severe injury or death.
    • Q. And it would be wrong to leave a design “as is” if the risks of severe injury or death could be prevented or minimized by reasonable safety measures, isn’t that right?

Category 4 of Witnesses who are evasive and non-cooperative

The witness who says they don’t understand the question.

The “I don’t understand the question” response is more often than not a stall so the witness can think about where you are going and what they should say. This question needs to be immediately put back on the witness so they will never say, “I don’t understand” unless they truly do not, i.e. the follow-up questions are so tedious for the witness that they will avoid using a stall technique like “I don’t understand”. There are two basic approaches to the witness who is falsely claiming, “I don’t understand”, exhaustion of all the reasons and rationale that are the bases for the witness’ lack of understanding, followed by the possible re-phrasing of the question, and parsing of the sentence to get admissions piece by piece. The following is an example of exhausting a witness on all the reasons they don’t understand:

Q. Would you agree that one of the standards of safe product design is that the risk of severe injury or death is always unreasonable, and always unacceptable, if it could be prevented or minimized by reasonable safety measures?

A. I don’t understand what you mean.

Q. What do you need to know to make the question understandable?

Q. What else do you need to know to make the question understandable?

Q. Anything else?

Q. Is that all?

Q. SO, in order to understand this question you need to know (restate and summarize what witness has said), it that correct?

Q. Having thought about it further, would you agree that one of the standards of safe product design is that the risk of severe injury or death is always unreasonable, and always unacceptable, if it could be prevented or minimized by reasonable safety measures? [This may or may not work, if it doesn’t the questioner may go on as below.]

Q. So, now knowing the answers to your questions, would you agree that one of the standards of safe product design is that the risk of severe injury or death is always unreasonable, and always unacceptable, if it could be  prevented or minimized by reasonable safety measures?

Parsing the question means breaking it down in as many pieces as are needed to get the admissions needed leading to the ultimate question. For the example,

Q. Would you agree that one of the standards of safe product design is that the  risk of severe injury or death is always unreasonable, and always  unacceptable, if it could be prevented or minimized by reasonable safety  measures?

A. I don’t understand what you mean.

The follow-up questions breaking this large question into more palatable pieces might be as follows.

Q. Is the manufacture of safe products important to your company?

Q. Why is it important?

Q. It would be irresponsible to manufacture without any regard for safety, wouldn’t it?

Q. If the design of a product can cause severe injury or death, that’s something that should be given some thought isn’t it?

Q. Is that important?

Q. Why is it important?

Q. A risk of severe injury or death from using a product can’t be ignored can it?

Q. Is the design of the product can be corrected to minimize the risks of severe injury or death, that’s a good thing isn’t it?

Q. Is that important?

Q. Why is it important?

Q. A reasonably safe manufacturer would change the design if  there were a way to minimize or prevent the risk of severe injury or death, wouldn’t they?

Q. Is that important?

Q. Why is it important?

Category 5 of Witnesses who are evasive and non-cooperative

The witness who tries to avoid being pinned down and responds “for the most part”, “pretty much all”, or “not necessarily”.

Hedge responses like “not necessarily”, “for the most part”, “pretty much all”, “that’s all I remember at this time” are designed to give the witness wiggle room at trial. Anytime there is anything other than “that’s all I know” as a response, exhaustion of the witness is required. The process of exhaustion teaches the witness that a straight, honest answer is the best alternative. The questions used for exhaustion are simple:

  • What else?
  • Tell me more.
  • Is that all?
  • (Restate and summarize what witness has said)
  • Did I get the right?
  • There’s nothing else?

In the context of an actual deposition it would read something like this:

Q. So you would agree that it would be improper to hire a childcare worker without a background check.

A. Well, not necessarily (for the most part, etc.).

Q. When you say “not necessarily” that tells me that there may be reasons you don’t agree with my statement. [Teach/tell the witness why their answer won’t be accepted]. Give me all the reasons why you say that.

Q. What else?

Q. Tell me more.

Q. Is that all?

Q. So [Restate and summarize the witness’ responses], did I get that right?

Q. Anything else?

Once mastered, this kind of exhaustion can be done without thinking by the examiner- it’s the witness who must constantly be digging for justifications for their equivocations. When a witness has obviously manufactured some bogus rationale for an equivocal answer, the examiner may choose to attempt to completely discredit the answer (not the witness) before moving on. An example follows:

Q. When I first asked you whether you would agree that it would be improper to hire a childcare worker without a background check, you said “not necessarily”, right?

Q. And the reasons you had for saying it wasn’t necessarily improper to hire a childcare worker without a background check were: the  applicant may be the son or daughter of another employee and you could ask them directly about the applicant’s criminal and  employment history, right?

Q. Is getting a reliable and accurate background check important?

Q. Why is getting a reliable and accurate background check important?

Q. Do you think it is possible that a mother, or other family member might be embarrassed about a son or daughter’s criminal history or their negative employment history?

Q. Do you think it is possible that a mother, or other family member may not know about a son or daughter’s criminal history or  their negative employment history?

Q. Wouldn’t you agree that a mother, or other family member might not be a reliable source for information about a son or  daughter’s criminal history or their negative employment history?

Q. Wouldn’t you agree that it would be improper to hire a childcare worker without a reliable background check from outside sources?

Category 6 of Witnesses who are evasive and non-cooperative

The witness who “doesn’t remember” or “isn’t sure” about dates, times, distances, or amounts.

Boxing in by bracketing is used to commit the witness to facts when the witness is trying to be evasive by saying, “I don’t know”, “I’m not sure” or “I don’t remember”.  The technique at its simplest is to get the witness to commit to the largest possible and smallest possible expressions of some measurement, and then work down.

Example: Boxing in by Bracketing

Q. How long did it take Dr. Lanson to get to the delivery room after he was called?

A. I don’t know.

Q. Was it at least 40 minutes?

A. Sorry, I’m not really sure.

Q. Would it have been at least 15 minutes, say the amount of time we have been speaking since the break?

A. Yes.

Q. How long does it take you to get to work, your best time and your slowest average time.

A. Maybe 30 minutes on a good day, 45 minutes on a slow one.

Q. Okay, then could it have been more than 45 minutes?

A. No, not that long.

Q. Well how about 30 minutes?

A. Yes, probably closer to that.

Q. So can we say that after the call, it took the doctor from 15-30 minutes to arrive, is that fair?

A. Yes, I would agree.

Category 7 of Witnesses who are evasive and non-cooperative

The witness who repeatedly gives Long Narrative Responses or Interrupts.

If left in its raw form, testimony can be unmanageable and unusable with a jury or court. When a witness continually gives long, narrative answers the testimony may become unusable for the creation of sound bites you would use with motions, mediation presentations, and trial presentations[10]. Long narrative responses also make it impossible to impeach the witness, and interruptions can prevent you from having a coherent question-answer for use in trial or otherwise. As already discussed Restating and summarizing can condense long, narrative testimony and make it more concise, but just as important is your control of the deposition by interrupting the witness so the testimony comes in “chewable” bites. You must be prepared to interrupt the witness (politely) with questions such as:

  • “Excuse me, Let me understand what you have told me.”
  • “Excuse me, before we go on, let me make sure I get it.”
  • “Excuse me, Are you saying that…?”

Or for the interrupting witness:

  • “Excuse me, Let me finish my question (restate question)?”
  • “I am sorry, it’s a lot easier for the court reporter to get everything down if we speak one at a time. Let me finish my question, and then you will have all the time you need to answer (restate question)?”
  • “Pardon me, I am afraid the court reporter won’t be able to get what you are saying down, let me ask my question again and then when I finish, go ahead with your answer (restate question)?”

There is also testimony that you just don’t want to hear. When that happens you must take control of the deposition and direct the witness to the specific question or topic that is part of your deposition plan, e.g.

  • “Excuse me, I appreciate your sharing that with me, but what I am asking is …”
  • “Pardon me, before we get into that, tell me…”
  • “Excuse me, I know what you are saying is important but before we talk about that can you tell me …”

The deposition of this kind of witness (like most evasive witnesses) requires the ability to move into cross-examination, one-fact, one-question. Long narrative responses are incompatible, and look evasive, when paired with simple fact questions.

Category 8 of Witnesses who are evasive and non-cooperative

Dealing with the witness who constantly lays down “rabbit trails.”

“Rabbit trails” are facts or testimony that a witness provides (generally) with the intent of de-railing the examination. The testimony is calculated to be so “interesting” that the examiner will have to ask a follow-up about it. This occurs with many evasive witnesses but is most common in the case of experts.

 

The key to dealing with “rabbit trails” is simple. Your deposition is about your questions, your goals, and your issues. The examiner must not allow the witness’ answer to dictate the examiner’s next topic until exhaustion has been accomplished with the current topic. When a witness mentions an enticing fact, write it down but don’t ask about it until you have exhausted the witness on the subject originally under discussion, or until a later time in the examination.

Example: Failing to Exhaust Because of Rabbit Trails

Q. Give me all the reasons you believe that this product was designed safely.

A. We have a 30-year history of use without significant incident (rabbit trail), our chief engineer is the holder of 5 patents (rabbit trail),, and we tested it on our employees before we sold any (rabbit trail).

Q. What do you mean by significant incident? (There’s nothing wrong with this question, but does the examiner know all the reasons at this point? The examiner begins following the first rabbit trail)

A. Well John Wellborne knows more about that than I do. (A new rabbit trail).

Q. How do you know that? (the examiner continues to follow the new rabbit trail)

A. Well, I think he was in charge of claims at the time.

Q. When was that?

A. It was in the 80’s sometime but there’s a report somewhere that had all the information about the claims.

Q. What kind of report would that be? (the examiner begins following yet a new rabbit trail and still hasn’t exhausted the witness on all the reasons the witness maintains the product was designed safely)

Exhaustion cannot be accomplished when the examiner

moves to a new topic before completing the exhaustion.

Example: Exhaustion done correctly

Q. Give me all the reasons you believe that this product was designed safely.

A. We have a 30-year history of use without significant incident (rabbit trail), our chief engineer is the holder of 5 patents, and we tested it on our employees before we sold any.

Q. What else? (This is exhaustion, the examiner does not follow the first rabbit trail)

A. The European supplier claimed to have done testing on the product.

Q. Anything else? (the examiner continues to exhaust)

A. Well, underwriter’s laboratories had approved the power supply and electronics.

Q. Anything else?

A. I don’t think so.

Q. So the reasons you believe this product was safely designed are that you have a 30-year history without significant incident, right? (the examiner begins going 1 fact 1 question to restate and summarize the answers)

A. Yes.

Q. And a second reason you believe this product was safely designed was that your chief engineer held 5 patents, right?

A. Yes.

Q. And the last two reasons you believe this product was safely designed was that the European supplier claimed to have done testing, and that Underwriter’s Laboratories had approved the power supply and electronics, did I get all that right?

Q. Have we now covered all of the reasons you believe this product was safely designed?

A. Yes.

Q. Are you sure?

A. Yes, there is nothing else.

Now, after exhausting the witness on the original question the examiner can ask about the “significant incident” and other rabbit trails created by the witness. It is fine to run down rabbit trails presented by witnesses in depositions, but only after you have accomplished the goal you were striving for first. To do otherwise is to cede control of the deposition to the witness, and fail to accomplish your original purpose, i.e. to exhaust the witness on a particular topic.

 Learn More about Deposition Strategy and Dealing with Evasive Witnesses

Advanced Depositions: Strategies and Practice, Phillip H. Miller and Paul J. Scoptur, Trial Guides, 2014 – this book and its companion CD has become the resource and text for AAJ’s Advanced Depositions program and include forms, motions, checklists, descriptions of techniques and examples from actual depositions.

AAJ Deposition Notebook, Thomas J. Vesper (West Group 2006) – this notebook covers everything from organization to technique, forms, motions, and case law. Money well spent for anyone who has the humility to recognize they don’t know it all.

AAJ’s Deposition College and Advanced Deposition College – these educational programs are designed specifically for plaintiff attorneys and combine substantive content on deposition technique along with workshops designed to give practitioners the opportunity to try new approaches. For more information about scheduling and availability of for these programs contact ATLA education at

http://www.aaj.org/education/ncacal.aspx or call at 202-965-3500, ext. 335 or 800-622-1791.

Brown, Peter Megaree, The Art of Questioning, Thirty Maxims of Cross Examination, MacMillan Publishing, New York, 1987.

Cicero, De Oratore, Harvard University Press, 1967

Translated by E.W. Sutton

Friedman, Rick and Malone, Patrick, The Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability, Trial Guides Publishing, 2005.

Haydock, Roger and Sonsteng John, Cross Examination: Trial Theories, Tactics, Techniques West Publishing Company.

Kestler, Jeffrey L. , Questioning Techniques and Tactics,  West Publishing Company.

Pozner, Larry S. and Dodd, Roger J., Cross-Examination: Science and Techniques, Michie Publishing, 1993.

 

©2017 Phillip H. Miller

[1] Michel Evquem de Montaigne was a renaissance lawyer and the originator of the essay. He was read and admired by William Shakespeare and Rene Descartes among others.

[2] Cicero, De Oratore, Harvard University Press, 1967, Translated by E.W. Sutton

[3] The term “Standards Deposition” was coined by the author to describe a kind of deposition of corporate representatives and others where part of the focus is on gaining admissions that certain standards of conduct or care or rules or regulations exist and apply to the facts of a particular case.

[4]This technique can also be tedious, and need not be applied to all portions of every witness’ cross.  It is the preferred technique to deal with witnesses who run or are evasive. For an exhaustive discussion of this technique see Pozner and Dodd, Cross-Examination: Science and Techniques, in the bibliography.

[5] This example of exhaustion (without the rabbit trails I added for this example) was provided by Attorney Paul Scoptur.

[6] Editing/creating video clips is simplified by used of this technique.

[7] This example of restatement was provided by attorney Paul Scoptur.

[8] Marie von Ebner-Eschenbach was a 19th century Baroness, novelist, and close friend of Fredrich Nietzche.

[9] These questions and answers were taken from a deposition taken by Attorney Tom Vesper, a long-time faculty member of AAJ’s Advanced Deposition College and author of AAJ-West’s Deposition Notebook.

[10] Editing/creating video clips is simplified by used of this technique.

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