Deposition: Answering Only The Question That Was Asked

BeQuiet “Always one thing at a time. Why must you put out your facts like gold coins, Frau Richter?”
-John Le Carre, A Most Wanted Man

I recently spent several days preparing inexperienced witnesses for their first depositions. Because it gives me an opportunity to be a teacher of sorts, I find this kind of preparation to be one of the more enjoyable aspects of lawyering.

One point that I feel can never be taught or practiced enough is for the deponent to understand when she has said enough in responding to a question. In other words, when to shut up.

It’s far too simplistic to teach a neophyte deponent “Just answer yes or no.” While that may indeed be excellent advice when the best possible answer is yes or no. And, assuming the deponent knows when the best possible answer is yes or no, answers correctly and stops there, then that tactic makes sense. But over the course of a deposition that lasts several hours or several days, there are going to be a lot of questions that simply cannot be answered using the “yes or no” strategy, and so I won’t have adequately prepared my witness.

This issue becomes particularly sticky in situations in which the examining lawyer does not possess a complete understanding of the subject matter and needs the deponent to guide him. In the arena of employment litigation we see this frequently. A plaintiff’s lawyer will have no practical understanding how the defendant’s business–say, manufacturing plastic widgets–actually operates. While the lawyer could learn everything he needs to know from his own client, I often find he will try instead to do this through deposition of a company Person Most Knowledgeable (PMK) witness.

When preparing such a witness, I begin by asking them to imagine that they are in a completely dark room, groping by hand to find familiar objects–a chair, a picture frame, a light switch! This, I tell the witness, is exactly what the examining lawyer feels like, and he is asking you to take his hand and guide him through the dark to the light switch. The all too human temptation, I warn the witness, is to do whatever you can to guide the helpless lawyer. This is not because the witness feels any affinity for the lawyer–probably the opposite. Rather, it is because the witness incorrectly perceives that, by helping the examining lawyer, she will more quickly bring the deposition to an end, which is what she wants more than anything.

The problem is that helping the examining lawyer will actually have the opposite effect. Every morsel of information the witness offers will give the examiner one more possible avenue to explore, one more path to go down. Instead of shortening the deposition, the additional information makes it go longer, and increases the likelihood that something damaging will make it onto a transcript. I teach that even the most experienced witnesses fall prey to this fallacy. With experts it can be even worse; they can have a tough time shutting up because the deposition gives them the platform they crave in order to showcase their special knowledge and smarts.

The question becomes, then, how to teach a prospective witness when enough is enough? Surprisingly, my favorite guru, Professor McElhaney, does not provide a great deal of guidance. In Litigation, he offers a list of rules to impress upon your client or witness about an upcoming deposition. Number 6 is, “Answer the question — not some other question–just the question you are asked. Say no more than is necessary to answer the question. Do not volunteer extra information or explanations.” Id. at 42.

That’s probably as good summary of the rule as there is. What’s left? Practice! In your mock deposition, take the witness through a lot of questions that she can either answer briefly, or ramble on.  Whenever you find her rambling, cut her off. Practice this as much as necessary until she understands the concept.

And then practice some more!

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