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.

Build Juror-Compelling Stories: Use the “Boy Meets Girl” Formula

Facts are boring. Stories are riveting. Facts put jurors to sleep. Stories keep them awake. Facts are essential to the case; stories are what make those facts persuasive. Each case has a story to tell no matter how apparently dry or complex the case may be.

At this point, plaintiff lawyers usually chortle with glee, they’re all about story! Except when the case is about eminent domain, or the intricacies of a business contract. They then grumble that business and contract cases lack the excitement of a story. For that matter, defense lawyers have the same complaint when it comes to business cases and more. Too often, defense lawyers complain that their side doesn't have a story to tell. This is false. A lawsuit is first about people, and it is the people side of a lawsuit that engages jurors.

A story doesn’t have to be long. In fact, long-winded stories are almost as frustrating to jurors as no story at all. A story encompasses your theme and gives the major points of the case. Preferably three points. That’s really all you need. Challenge yourself to finding your case’s story and then reducing it to the quintessential “Boy meets girl, boy loses girl, boy gets girl.” A beginning, middle and end. Preferably with your client cast as the hero.

Short, sweet, and to the point; that’s effective Courtroom story-telling!

Connect to Jurors With the Specificity of “Who”

You must connect with jurors if they are to find you convincing and persuasive. One of the prime often most neglected ways to connect effectively with jurors is to get them up to speed with the “Who” in the case early on. Jurors feel disconnected when they can’t readily figure out who’s doing what to whom and why that should matter.

Use organizational charts and other visuals that vividly illustrate the flow of communication or authority from one party to the other. Symbolize the relevance of each party to the case by using icons or other graphic devices. Remind jurors of those relationships from time to time as your case proceeds (i.e., "Is it your testimony that Mr. Smith, Ann Jones's boss, went on to say…”).

Be sure to use full names of persons, entities or objects throughout the case. As repetitious it may seem, complete references are vital. Use of pronouns or abbreviated references to important entities or objects is confusing to jurors. Jurors often have trouble just keeping track of who did what to whom. They will be totally lost if they must also concentrate on which "he," "she," or "it" the lawyer is now referring to. Certainly, well-known abbreviations are acceptable, but generally speaking, abbreviations used too often only serve to confuse jurors, and a confused juror is an unsympathetic, disconnected juror.

This you cannot afford, if you are to win your case.