How you approach a witness in deposition has everything to
do with how they are likely to respond.
If you adopt an aggressive style, you will probably be met
with one of two possible responses: either the deponent will fight back,
getting hostile and defensive, or the deponent will melt into confusion, “I
don’t know-s,” and tears.
If you adopt a conciliatory, more friendly approach, you
will usually elicit more narrative and thus more information.
If you adopt a neutral, fact-finding approach, you will
probably receive informative responses, but not much elaboration or narrative.
Now, depending on your objective, one or the other of these
approaches will be most appropriate. Sometimes you can choose to change
approaches in mid-stream, such as starting out neutral, gently morphing into
friendly, only to become more aggressive down the road.
What’s important is less the approach you choose, as that it
be a choice. Too often, lawyers get in the habit of taking a deposition a
certain way, and always do so. That’s great, but there may be a more effective
approach available than your habitual one, given the nature of the witness and
your objective.
Make your choice conscious, and you’ll be that much more
successful.
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