Thinking out loud is ordinary, common, and acceptable in
regular conversation. However, in a deposition, it can make the difference
between solid responses, and responses that give opposing counsel more
information than was required – and could damage your case.
For example, to the question: “Are your neck symptoms
resolved as we sit here today?” the response was: “Well, my neck was sore from
the incision for a while. And I have a pain in my shoulder from that other
surgery I had back in ’10, but my neck, yeah, it hurts whenever I try to move
my head, like when I drive.”
Thinking out loud gave opposing counsel information
regarding residual pain from a prior surgery which could complicate matters for
you. Not to say that witnesses should ever hide information, but if the witness
had thought through his/her response before verbalizing it, the witness would
have limited their answer to the pain experienced as a result of the second
surgery – the one at issue.
Help witnesses to do their thinking inside their minds
before they verbalize their response. Reassure your witness that the moment or
two it takes to organize an answer in their heads will not appear like
“fudging” or evading the question. Video-taped role-play as part of witness
preparation helps demonstrate to witnesses that “think time” is really very
brief, yet critical.
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