You are working on a case that is seemingly a slam-dunk in your client’s favor. Responsibility is clearly on the other party. Surprisingly, your case goes to trial and shockingly, you end up losing. Deciding this cannot happen again, you retrace how that had occurred. You observe that early in the process the opposition had taken a much different course of action than you did. While you were focusing on garnering statements from witnesses that proved what you had already thought, the opposing attorney held their cards close to the vest. You had no idea what they were up to. In trial, your client buries himself on the stand. You thought he told you all of the relevant information. After all, you were there to help him, right? So how did the opposing attorney get the upper hand?
Good lawyers are guided by the facts. They are obsessed with the facts. They use facts to form their own argument, not use their argument as a basis to search for the appropriate facts. An integral part of the fact-finding phase in a case is the deposition.
The purpose of a deposition according to the Practicing Law Institute:
“A deposition permits a party to explore the facts held by an individual or an entity bearing on the case at hand. Depositions occur well before trial and allow the party taking the deposition to learn the facts held by the other side and third parties. Too often, depositions are used to confirm the facts already known to one side. Depositions, properly done, do so much more and provide an avenue for accurate case assessments, and when required, for trial.”
I have read too many transcripts and have seen too many attorneys using depositions as tools for cornering a deponent into a “gotcha” statement. It always seems forced, predictable, and overwhelmingly fruitless.
I get it. You’re looking for a first-round knockout blow. A settlement in your favor is a feather in your hat. But while you are trying to bait your opponent to walk into your right uppercut, you should be canvassing for more information. There’s too much more out there to be had. You aren’t in a statement battle at this point, you’re in an information battle.
Please allow me to disqualify/qualify myself for a moment: I am not a lawyer. I am an information collector that uses human sources. As I did in the military you should see information as valuable intelligence that can lead to your mission either succeeding or failing.
Consider these points: Would your case be enhanced or hurt by an abundance of accurate information? Why show all of your cards early in the process? You let the opposition know your angle which is partly based on the tragedy of assumption. In the military, assumptions can have disastrous consequences for any mission. If you are leading your depositions with assumptions, with what foundation are you working upon moving forward? Your goal should be to assume nothing. You don’t know what you don’t know. Let them tell you what happened while you look through the lens of acquiring information, plain and simple.
As you approach your next deposition:
Anytime I went into an interrogation in Iraq I would read anything I could possibly read on the detainee I was about to interrogate. I’d read prior reporting, capture tags, screening reports, and I’d even ask the guards about the detainee’s emotional state, sleeping habits, eating habits, etc. In other words, I obsessed over information. If there was an information edge to be had, I was consuming it. It is very easy to see the benefits when you put this mindset into a legal setting. I know you do some of this already. Yet, to what extent? You use previous depositions, statements, and documentation to evaluate possible questions for your next deposition. I hope so, at least. Yet are you taking advantage of all of the psychological factors at your disposal (ie: body language)? How about the information vectors (ie: social media)? If you are truly prepared for a deposition, then your outline should encourage flexibility and follow-up questions.
Take the Blinders Off
When I was a student in training for interrogations and source operations, I was tasked with debriefing a source. Seems routine, but as with any communication, there are pitfalls. The problem was, I knew the information I wanted and I focused on that information as it was the big, sexy piece I needed to make a big, sexy report. Unfortunately, I missed some important points that could have had much bigger implications. I was told to “take the blinders off”. Lesson learned. From then on, I let the information come to me; to see from a wider lens. This will also help with not showing your cards and you will be much more difficult to prepare for.
Take Control, Maintain Control
You ask a question and the deponent answers. The witness adds onto that answer, seemingly divulging unsolicited information with some degree of relevance to the case you are building. This is not a terrible dilemma. After all, this is more testimony. However, it is how you deal with this new information that will dictate your success or failure. If you take notes as you should, you can merely jot down the gist of this information to return to at a later time and continue on with the original answer that you had asked about … which is exactly what the witness doesn’t want to talk about. This is called a “Red Herring”. Use this behavior as an indicator that you are onto something. Focus. Attack. Exploit.
Use Good Questioning Techniques
The success of any query is dependent on the use of good questioning techniques. I always insist my clients use good questioning techniques when they are taking a deposition. It is what I was trained to do for any one-on-one interaction and it is the cornerstone of gathering accurate and complete information from a human source. The burden of speaking should be on them, not you. This applies pressure in many helpful ways and is how you get them to make mistakes. Questioning is highly nuanced, so for more on how Intellecture Training can help you improve your questioning skills and so much more, contact us at: https://intellecturetraining.com/#contact