Featuring Thomas J. McGowan and published May 21, 2014.
Think of a deposition as a football game: The witness can’t advance the ball with his testimony, so his best hope is to keep the ball exactly where it is.
In depositions – pretrial witness examinations – opposing counselors try to get the other side’s witnesses to tip their hand, or at least make admissions that will hurt their case.
Attorneys therefore counsel clients to avoid volunteering too much information – to listen carefully to the question being asked and, while remaining truthful, answering only what is specifically being asked.
“If I ask, ‘Do you know what day today is?’ the answer is not ‘Tuesday,’” said David Blansky, a partner at LaMonica Herbst & Maniscalco in Wantagh. “The answer is ‘yes’ or ‘no.’”
By volunteering information, the witness may be giving up a fact the other side wasn’t aware of and may be lining up a whole other area of questioning that may not have occurred to opposing counsel, said Thomas McNamara, the partner in charge of litigation for Certilman Balin Adler & Hyman in East Meadow. Or the attorney may get the witness to commit to a particular story, so he can impeach the witness at trial by highlighting testimonial inconsistencies.
The need to zip lips during a deposition, however, can be a difficult concept to grasp for those outside the legal universe.
“If discussing an issue in their ordinary daily lives, most people will try to convince the person they’re talking to that they’re right or that their story is correct, and they’ll bring in evidence to back it up,” said Jeff Miller, who chairs the litigation department at Westerman Ball Ederer Miller & Sharfstein in Uniondale.
At a deposition, however, witnesses must resist that temptation, even if they have information that would help them make their case. What makes it especially difficult is that opposing attorneys know all the tricks to loosen tongues.
For instance, Miller noted, if a witness answers that he doesn’t know the answer to a question, the attorney might get sarcastic and/or raise his voice, challenging him with a comeback like, “But you’re the president of the company, how can you not know that?” It’s natural for the witness to respond emotionally and attempt to back up his claim, but he’s better off saving it for the trial, Miller said.
Or, opposing counsel may decide he can get more flies with honey.
“The attorney might be very nice and polite, which will make a lot of witnesses try to be very helpful,” McGowan said. “But no matter how charming the attorney may be, it’s important to remember, he is not your friend.”
An aggressive attorney might in turn spark rude responses from the witness, whose statements may be read at trial and therefore damage him in the eyes of the jury.
Attorney Joseph Bavaro was representing a plaintiff in a product liability case in which a water heater exploded, injuring several people. At first, he had a high opinion of one of the other plaintiffs, an engineer.
“He was a very smart person; he was wearing an Eagle Scout ring, which I found impressive,” said Bavaro, a partner at Salenger, Sack, Kimmel & Bavaro in Woodbury who concentrates his practice in personal injury litigation. “But then, the opposing attorney asked him a question and he responded, ‘That’s a f—ing stupid question to ask me.’ Everything that was good about him went down the toilet.”
As Bavaro noted, smart attorneys will find ways to get statements that hurt a person’s likability read to a jury, which will be instructed to give equal weight to statements made both prior to and during the trial.
Witnesses also hurt themselves when they come off sounding like a lawyer.
When representing a plaintiff, Bavaro had a witness for the defendant reply, “Objection, relevance.” It’s bad enough for a lawyer to sound like a lawyer, let alone the witness, he said.
“People don’t trust lawyers; there are so many jokes about it,” he said. “If a client sounds like a lawyer, he becomes less trustworthy in today’s society.”
Sometimes, a witness is concerned that his answer can be interpreted in more than one way. In such cases, he can say he doesn’t understand the question, so opposing counsel will have to rephrase it.
“Or you can say, ‘If by your question you mean the following, then my answer is this,’” McGowan said. “This lets you identify on record what you believe is meant by the question, so no one can interpret your answer wrong.”
Better still, the witness should pause before answering a question, to give his attorney time to do his job and object if necessary, such as if the question assumes facts that haven’t been established or if it calls for privileged information, McGowan added.
“Never, ever assume, guess, believe,” he said. “If you don’t know something, your answer should be ‘I don’t know.’”
Witnesses often feel guilty if they can’t answer the attorney’s question, or they worry they will seem foolish or ignorant, Blansky said.
“You should answer the question to the best of your ability, but if you don’t know or you don’t remember, there’s nothing wrong with saying so,” he said.
Finally, when showing witnesses documents such as contracts or invoices to refresh their recollection of important events, attorneys must be careful what they share. In one case, McNamara was able to obtain privileged, helpful information because opposing counsel was careless.
“If a witness testifies that he was shown a document to refresh his recollection, and that it did refresh his recollection, the other side is entitled to see the document,” said McNamara, who obtained a memo from the opposing attorney to the client with regard to the entire case, including legal theories, that would otherwise have been privileged.