CBA Record May-June 2023

YOUNG LAWYERS SECTION: BUILDING BRIDGES

setting of a law firm office or virtual video conferencing platform surrounded by people in suits may be intimidating. Even if the witness has prior experience in the courtroom, a deposition can be an odd experience. The witness may be confused and get flustered when the attorneys object or have discussions off the record, which could affect the quality of their testimony. Strike the Right Tone From the outset of the deposition, the importance of tone when examining a nervous or hesitant witness cannot be overstated. Using a disarming and non aggressive tone can be helpful in this situation to make the witness more com fortable and open. You can tell the witness that you are not trying to trick or confuse them while reminding them that they are just there to tell the truth. Explaining the procedure of a deposition to the witness and using a disarming tone are important techniques to remember. However, other useful strategies can be incorporated into the substance of your questioning as well. Explain the Deposition Procedures To further combat any confusion or frus tration, try to put the witness at ease. Begin with explaining the procedures for conducting the deposition. Sharing the ground rules with a witness is mundane, and you may be tempted to rush through this, but it is important to take special care to go over the process with the wit ness at the outset if they appear nervous or confused about it. Introduce yourself and explain that a deposition is a legal proceeding, and just like testifying in court, the witness is under the same legal obligation to tell the truth. Instruct the witness that they must answer your ques tions truthfully unless their attorney tells them clearly and directly not to answer. Emphasize that the witness should tell you if they do not understand a question and that you will do your best to clarify or rephrase the question so that they do. Let the witness know that they may take a break during the deposition at any time as long as they answer the pending ques tion first. Finally, inform the witness that

Tips for Deposing Reluctant Witnesses, Whether They are New or Experienced By Whitney Barr and Jake Berger

T he primary goals of taking a deposi tion are to obtain information and secure important admissions for your client’s case. You want to find out, under oath, what the witness knows, and preserve their testimony. That can be dif ficult if you encounter a witness who is reserved, reluctant to answer questions, or outright combative and obstructionist. An attorney may depose a wide vari ety of witnesses throughout their career. A first-time deponent may be intimidated by the process or hesitant to answer truth fully and completely because they are afraid of implications or potential con sequences of the lawsuit. On the other hand, an experienced deponent, such as an expert witness, may be well-versed in the deposition process and more strategic about how they answer questions. Both first-time and experienced witnesses can present difficulties for the attorney con ducting the deposition. If you find your self deposing a witness who is not eager to participate, consider incorporating the following strategies.

First-Time Witnesses A witness could be short with you or reluctant to answer questions for several reasons. They could be nervous about speaking in front of a group of people. They could hesitate to answer out of fear that what they say under oath may have a negative impact on the case. They could also be intentionally evasive for this reason and try to strategically respond to avoid answering. Or the witness may find participation burdensome and just not want to be there at all. Whatever the reason(s), the attorney’s role in the depo sition is to effectively obtain information from the witness. To that end, it is important for the lawyer to understand that a witness may not be intentionally uncooperative. While it is likely the witness has prepared and reviewed documents in advance, the pro cess can nevertheless be nerve-racking for them. An individual who has never given a deposition before may be apprehensive and guarded. Although a deposition takes place outside of the courtroom, the formal

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