Most clients hate depositions. They hate having to sit there while the other guy's lawyer takes shots. They hate the constant feeling that someone is trying to trick them. They hate having their stupidities or failures of memory exposed.
Most often I have problems with clients who react by getting angry and saying stupid things as a result. That's because many of my clients are, to be blunt, hotheads. That's how they wind up with someone like me in the first place. But there's another category of client/witness who is very difficult: the timid person. Timid deponents may be lions in other contexts (as my client yesterday was). But put them in a depo context, and they are easily bullied, led, and manipulated.
So in preparing a somewhat timid client for yesterday's depo, I tried a new approach. I explained to her that knowledge is power, and she is going to have power over the opposing lawyer because I was going to teach her all his tricks and how to recognize them. For instance:
- Using an incredulous tone of voice to move her off an answer or qualify it ("So THAT'S your explanation? REALLY?" or "Now, YOU SAY that ….") even when the answer is entirely correct.
- Building up a fast question-answer rhythm to lull her into answering without thinking.
- Using a generally nasty, scolding, abusive, or obnoxious tone of voice to intimidate her and put her off her game.
- Asking a series of questions while affecting an attitude as if he is about to spring a trap or reveal some huge smoking gun — when in fact there's nothing there.
- Asking questions while ostentatiously looking at a document, as if the document will disprove what the witness is saying.
- Switching suddenly from topic to topic to keep her off base.
All of these are calculated to make a witness — especially a timid witness — second-guess his or her answers. That might manifest in the answers being tentative in tone of voice, which is particularly bad in a video deposition. It might result in the witness using verbal qualifiers ("I think" "maybe" "if I recall correctly") when he or she would not have otherwise. It might result in a witness giving defensive answers rather than direct ones (like, ideally, yes or no), which results in giving the questioner more information than is necessary and lead down all sorts of tangents. In short, it can do serious harm to a witness' value.
This time I took the client through each of these techniques, told her to watch out for them, and invited her to play a game where she would mark each use of the technique on a little cheat sheet and we would compare notes at the end. Worked like a charm. She got into the game of watching for the techniques, and felt powerful when she realized she could spot his use of them and that they were often gratuitous and funny when you knew how to spot them. She did much better as she went along, realizing that recognizing these techniques gave her power.
Now maybe every lawyer has always done this and I'm just a chump for recognizing it now. But damn, did it work.
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