By Don Keenan
Have you ever had a deponent in the face of a very simple question, ask you:
“I don’t understand what you’re asking counselor?”
“I’ve answered that question before. How many times do you want me to answer it?”
“That’s a nonsensical question I’m incapable of answering.”
“I’ll need to have that question repeated counselor.”
I teach at my referring attorney workshops in Seaside, Fla., that you should be able to detect one of these rascals by gathering up prior depositions and trial transcripts. A leopard will not change its spots; therefore, shame on you if you don’t understand what’s coming in advance.
MAJOR TRUTH: Try to ascertain the reason for the obstruction, which is likely due to one of two possible motives.
First is that the deponent just wants to mess with you, maul you, and send you the message that he ain’t giving up much of anything (and anything he does give up, you’ve got to earn).
The second reason could be – and most frequently is – because the expert is just trying to buy time, to understand where you’re coming from and to form the best possible answer to give you without helping your case.
Use your gut instinct to determine which of these motives is behind it. Once you’ve determined it, go about shootin’ this egg sucking dog by one or all of the following three steps:
Step #1: WRITE THE QUESTION DOWN.
You should already have your powerful bulls-eye questions written down verbatim, so therefore peel off those questions on separate sheets of paper and when the deponent starts giving you the “I don’t understand, etc., routine” you can simply say to them, “Maybe you’ll understand it if you see it in writing. Perhaps your visual skills are better than your audio skills at understanding – so here, let me hand you a piece of paper with my exact question written on it.”
Then go about to slicing and dicing the deponent: Do you agree that this question is simple; do you agree that the words within the question are easy to understand; do you agree that the jury and my client have the right to simple answers?
Just make sure you keep these questions tight. Be the woodpecker and stay along the egg sucking dog until you’ve got him. If you have to run through a half a dozen of these questions by showing him the questions in writing, then just let him know that as long as it takes, you’re going to stay on him.
STEP #2: Use the Dictionary.
If you know in advance that you’re going to have a difficult witness, start off the deposition by telling him that you have read more depositions and trial transcripts then you can even count, but the thing you’ve realized is that he has difficulty with a lot of the questions due to understanding the meaning of the words being used.
Now, we’ve already covered that you’ve sent him the message (even before the first question) that you know he’s a leopard and that you know about the spots. To many such deponents, this can begin the Chinese water torture of intimidation. Once you’ve established you know the game, tell him that you’ve brought a dictionary with you to the deposition (point to where it is, on the middle of your table), and tell him you’ve brought it to help everybody out with understanding the words in the questions being asked. I’ll say to the deponent, “Whenever there is a word you don’t understand, then I invite you, sir, to use this wonderful book of meaning and get a definition to which you agree. I assure you if it’s in this book then I’ll also agree with the meaning so we can move on and not get entrenched with wrestling over a word’s meaning. The dictionary will be the referee.”
A photo illustration shows a 2nd edition copy of The Macquarie Concise Dictionary, the authority on the English language in Australia, on a coffee table in Sydney October 17, 2012. REUTERS/Tim Wimborne
Once again you have to be persistent; just as soon as they start babbling about how they don’t understand the question, start sliding the dictionary towards them. I’ve had depositions where I’ve had to do that four or five times but then the next time when I start to slide it, he knows he’s cooked and will back off and I’ll get an answer I want.
Tip: Don’t get a complicated full dictionary that offers up five meanings for every word (this will just play into the experts’ hands); if possible, get a simple (almost childlike) dictionary. In fact, if you’re comfortable with a children’s dictionary then, by all means, use it. The jury is not gonna disagree with what’s in the children’s dictionary and Lord help the witness who does.
Step #3: Call the Witness out.
Any of you who have been to my depositions seminar know that from time to time I will “call out” a deponent for their body language. If they fidget with their hands, their neck gets red, they look up at the ceiling, etc., I’ll call ‘em out on it and ask why they are fidgeting, why is their neck getting red? Is the answer to my question written on the ceiling – is that why they’re looking up? This technique of calling a witness out can shake the witness’ confidence, especially if you expose something that they didn’t want anybody to know.
The beauty of the call out is that, even if the jury had not been paying attention to this body language before, after you call them out the jury will surely pay exclusive attention to the body language.
But it’s not the body language I want to recommend to you in this article; rather, it’s another type of “call out.” Put the cards on the table and call the deponent out: “Some people would believe what you just said is simply buying time to answer the question. Are you buying time?”
Bam, you’ve exposed them. If that’s the true reason why they’re being obstinate, then that’s a knife through the gut. But of equal importance, it gives the jury a reason why they’re not answering the question. Remember Chapter 2 in the Reptile book, which teaches the Reptile© despises legalese, medical-ese and engineer-ese. Anytime you complicate things with that type of questioning, you strengthen the bubble that threatens them and Bubble will not trust it.
There is another technique that I would advise for the most aggressive woodpeckers, which is what I call the “rope-a-dope” named after the great Muhammad Ali (who is, in my opinion, the most famous fighter in history). The name came about during his title fight with Joe Frazier in Africa; the “rumble in the jungle” fight.
You see, Joe Frazier did not have fancy footwork. He knew only one movement and that was straight ahead; he was like a human battering ram that clearly didn’t have the foot movement like Ali (float like a butterfly and sting like a bee). He never retreated, he always came forward; thus, Ali devised the rope a dope move to beat Frazier.
The rope a dope is pretty much what it sounds like; you plant your backside next to the ring’s rope and put your boxing gloves around your face, keeping your elbows tight and then you let your opponent pound away. Ali later recounted that he concentrated on abdominal work with equal voracity as his bag work because he wanted his opponent to be able to deliver as many body shots as possible without hurting him. So we have the rope a dope in action in the heavy weight fight with round after round after round of Ali with his back on the ropes taking punch after punch. The brilliance of the strategy is that sooner or later your opponent is going to tire out, which is exactly what Frazier did. He lost his arm strength in the later rounds and could not protect his head and Ali proceeded with lighting speed to make Frazier’s face look like it came out a meat grinder. Google Frazier’s pictures after the fight and you’ll see what I mean.
I’ve enjoyed my reminiscence, thinking back on one of the great fights of boxing history… But what has that got to do with taking a deposition?
We actually have something better than a fighter – we can use rope a dope and let the deponent continue to argue, be obstinate, squirt the octopus ink in the water and at some point, we don’t even need to knock them out. Bubba knocks them out by no longer listening. (I’ll say it again: Remember the Reptile© celebrates simplicity and clarity and hates complexity, confusion and ambiguity.) If you don’t like the “rope a dope” idea then I will encourage you to embrace the “give ‘em enough rope to hang themselves” concept. Either way they will expose themselves to the jury and they will knock themselves out.
This is obviously easy to do even if you’re a puppy lawyer and doesn’t require nearly the same amount of skills the other steps above require. So I’ve provided this simply as a default safety net for use as you see fit.
Bottom Line: An obstinate, difficult witness can be a gift. Know how to use it.