Depositions are an important part of the legal discovery process. They allow lawyers to interview witnesses under oath prior to trial. Skilled lawyers use various tactics and tricks during depositions to gain an advantage or extract helpful information from witnesses. Understanding the tricks lawyers use in depositions can significantly impact the outcome of a case. Here are some of the most common deposition tricks used by lawyers:
When facing a deposition in a litigation, having a business litigation lawyer in California by your side can be invaluable, as their expertise in both state-specific laws and strategic deposition techniques can protect your interests and strengthen your case.
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Asking Leading Questions
One of the most basic yet effective tricks is asking leading questions that hint at the desired answer within the question itself. For example, a lawyer might ask “You slammed on the brakes to avoid the accident, correct?” This primes the witness to agree with that version of events, even if it’s not fully accurate. Less skilled opposing counsel may fail to object to leading questions.
Interrupting the Witness
Some lawyers intentionally interrupt the witness frequently mid-answer, not allowing them to fully explain. This can frustrate and fluster the witness, potentially causing them to change their answer or leave out key details when they resume talking. The interrupting attorney controls the narrative.
Letting Witnesses Speculate
Lawyers allow witnesses to provide speculative answers with guesses, assumptions or hearsay. They rely on the opposing counsel failing to object to speculation, which can then enable the attorney to cite the speculative testimony later as factual.
Asking Complex Questions
Skilled lawyers intentionally ask long questions packed with details to confuse witnesses. Often witnesses won’t properly hear or comprehend a lengthy, complex question. Their confused response can then be misconstrued or used against them.
Sudden Bursts of Hostility
Occasionally attorneys will become suddenly aggressive and hostile with a witness without provocation in hopes of unraveling their composure. This may shock witnesses into making emotional statements, exclamations or reactions rather than calm, considered responses.
Verbal Trickery and Misdirection
Lawyers might intentionally misquote a witness’ previous statement when cross-examining them. Most witnesses won’t catch the false equivalence. Or a lawyer might ask about Topic A but seem to transition to Topic B, catching witnesses off guard who provide an incongruous response damaging their credibility.
Bombarding With Difficult Documents
Presenting page after page of complicated contracts, medical records, financial statements or other documents can overwhelm witnesses. It’s often a stalling tactic hoping witnesses will grow exhausted and impatient, making them more pliable to suggestion.
Appearing Bored or Distracted
Some attorneys use body language like closed postures, yawning or looking around the room to give witnesses the impression they are boring the lawyer and wasting time. Witnesses then often rush explanations in the desire to appear sharp and efficient on the record.
Giving False Impressions on the Record
A lawyer’s courtesy, conversational tone and expressions of care or concern for the witness can be ploys to manipulate the official transcript. Later the attorney can argue they acted properly and respectfully based on the record, despite antagonistic verbal questioning.
Ambushing With Surprise Evidence
Springing unexpected documents, photos, video clips or other evidence on witnesses unexpectedly can shock them into hasty, emotional reactions without considered reasoning. It exploits the element of surprise unfairly.
Monopolizing and Wasting Time
Time limits usually constrain depositions, so attorneys intentionally drag examinations out with tedious minutia questions unrelated to the core issues just to limit opposing counsel’s chance to obtain additional testimony.
These techniques and more are common plays in a skilled lawyer’s deposition playbook. Of course, ethical attorneys focus questioning on discovering the legitimate truth rather than tricks or manipulation. But deposing attorneys are tasked with representing their client’s interests, so many to resort to crafty means within lawful bounds. The best way for witnesses to counter is being well-prepared by their own legal counsel beforehand. Knowing what may come allows responding carefully rather than being caught unexpectedly at the moment on the record.
How Do You Answer Tricky Deposition Questions?
Being deposed can be stressful, especially when faced with tricky questions from opposing counsel trying to trap you into making damaging admissions. The key is to stay calm, think before responding, and answer only the question asked without volunteering additional information.
If a question is confusing, ask for clarification. If you don’t know the answer, say so. Don’t speculate or guess. If you remember only part of the answer, provide the information you do recall. Qualify incomplete recollections by saying “to the best of my recollection.”
If you realize you answered incorrectly or want to revise your response, correct yourself on record. It’s better to clarify now than be attacked for contradiction later. Beware of questions prefaced with “isn’t it true that…” These attempt to characterize facts to the questioner’s advantage. Restate the facts if the characterization is incorrect or misleading.
For tricky yes/no questions, determine if part of the question is accurate but other parts are not. In that case, clarify what portions you can agree or disagree with. This prevents being trapped by a false dichotomy of simply answering yes or no. Being thoughtful and avoiding assumptions, speculations, and exaggerations will result in clearer, more credible testimony.
