Tailor Your Approach to the Deponent Based on Choice, Not Habit

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.

Words, words, words!

Did you know that the very words you use in framing your question will encourage witnesses to think and respond differently?

For example, in a study in which a group of people were asked to estimate a basketball player's height, the response varied. When asked "How tall is he?" those in a study answered on the average, “79 inches.” When the question posed was, "How short is he?" of the same player, subjects answered on the average, “69 inches” a difference of almost a foot!

Choose words such as "fast" when you want to suggest speed, "far" for distance, "tall" to emphasize height, and "short" to minimize it. "How fast was the car going?" suggests high speed. "At what speed was the car traveling?" suggests a more moderate speed. "How far was the intersection?" implies that the intersection was far away; "How near was the intersection?" implies the opposite.

Choose the word that presupposes your desired answer. "How long did that go on?"
denotes a situation went on a long time. "How soon was it resolved?" indicates the situation did
not go on a long time. "How many people were involved?" implies many people were involved.
"Who else was involved?" implies just a few people were involved.

It is surprisingly easy to make deliberate word choices that better focus witness responses - and therefore juror perception - to your advantage.