Trial Magazine

It is the rare deposition when a defense witness is entirely cooperative and provides helpful testimony without putting up a fight. Whether evasive, “forgetful,” argumentative, or just plain uncooperative, most defense witnesses will find ways to make your life difficult. Here are a few tips to maximize the quantity and quality of information you obtain from them.

Remember, you are in charge. This is a refrain to play through your head in any deposition but particularly when dealing with a challenging witness. As the examining attorney, you run the show, and you should make that clear. Remind the untruthful witness of his or her obligations under oath. Tell the obstinate or argumentative witness that you will seek court intervention to enforce cooperation. Tell the evasive witness that you are happy to suspend the deposition and bring the witness back when he or she can fully answer your questions. Never be unreasonably antagonistic; simply give the witness firm direction when needed.

Ask simple, direct questions. The more complex the question, the easier it is for the witness to evade. Ask concise, one-part questions that cannot reasonably be perceived as vague or confusing. Give the witness nowhere to hide.

Be persistent. If you aren’t getting an answer, keep hammering away. Don’t let the difficult witness “win” by causing you to move away from an important question. Re-ask the question, have the court reporter read it back, or inform the witness you will continue to ask the question until a responsive answer is given. Persistence pays off.

Be flexible. You may need to scrap your outline and reinvent your strategy, and that is perfectly fine. Be able to think on your feet, reframe your questions, and alter your approach.

Keep your composure. It is easy to get lost in the heat of advocacy. But the moment you let your emotions get the best of you is also the moment when you fail to be your client’s best advocate. Difficult witnesses may get under your skin, but take a deep breath, take a break if necessary, and focus on the larger task at hand.

Drew LaFramboise is an attorney at Ashcraft & Gerel in Washington, D.C. He can be reached at dlaframboise@ashcraftlaw.com.