For my final installment in the current series on depositions, I want to talk about what to do when your tactics for getting impeachment material have failed. What do you do when you haven't been able to pluck crystals from the mud, when you haven't been able to carve out your crisp responses, when the witness is just obstinate and won't give you the answer you know they have? What do you do then?
The answer is the "Three Ps" of deposition taking -- namely, persistence, persistence, and persistence. I would say that over the hundreds of depositions I've taken, watched, and read, the one quality that is common to successful deposition takers is that they don't give up. They ask the same question over and over and over and over, until they either get the answer they want or decide it's not going to happen in the allotted time.
Now, I don't mean literally asking the same question verbatim. But I do mean trying different ways to ask the same question, or to come back to the same question. Let's go back to the deposition of our poor CFO who, let's imagine, doesn't want to tell us the simple fact that he didn't talk with his head of sales about Q4 numbers before he made his sales report on the earnings call. With the Three Ps at work, it might look something like this:
Q. Did you talk to Nancy, the Head of Sales, about the Q4 sales number before you gave the Q4 earnings report?
A. Well, I talk to Nancy about a lot of things, about a lot of reports and a lot of numbers. That's very common.
Q. I understand, but my question is did you talk to her about the Q4 sales numbers before you discussed them on the Q4 earnings call?
A. Well, my process for preparing for that call was to talk to a lot of people and Nancy would often be one of the people I talked to.
Q. Sure, I understand, you talked to a lot of people before the Q4 earnings call?
A. Right.
Q. Including, Jeff, your comptroller?
A. Yes.
Q. And Susan, the CEO?
A. Right.
Q. Did you talk to Nancy before the call?
A. Well, like I said, it was a lot of people.
Q. Was Nancy one of them?
[Counsel]: Object; asked and answered.
Q. You can answer. Was Nancy one of them?
A. Was Nancy one of what?
Q. Was Nancy one of the people you spoke with before the Q4 earnings call?
A. Well, I spoke to a lot of people -- like you said, Jeff and Susan -- and we really have a whole process for getting ready for those calls.
[Counsel]: Would now be a good time for a break?
Q. Sure.
[Recess taken]
Q. Great -- now we were talking about the Q4 earnings call, do you recall that?
A. Yes.
Q. And your preparation process?
A. Uh huh.
Q. Did you read the Q4 sales report as part of that?
A. Yes.
Q. Did you discuss that report with anyone?
A. I think so.
Q. Who do you remember discussing that report with?
A. I remember discussing it with Bill, with Susan, maybe Joe.
Q. Do you remember discussing it with Nancy, the Head of Sales?
A. I don't remember that.
Q. So you discussed the Q4 sales report with a bunch of people -- with Bill, Susan, Joe?
A. Right.
Q. But you didn't discuss that report with Nancy?
A. Well, I think what I remember is that I had discussions with different people.
And so on...
It's a slog; it's painful; you feel like you're being annoying -- but this is where you will spend a lot of your time in depositions: asking, re-asking, and asking yet again the same question. And you have to do it; you have to persist, and persist, and persist.
Why?
Well, first of all, you don't have a lot of choices. At the end of the day -- and this was the post I started this whole series with -- the point of depositions is to get cross-examination material. So if you don't get the points you came in to get, you've failed. At least on that point.
Second, and this is the key, persistence works. Human nature really rebels against not answering questions -- especially when you know you have an answer. People tend to be able to do it once or twice out of the box. With preparation from their lawyer on how to "evade" questions, they can do it a few more times. But it is the rare person who can sit there for an hour, for two hours, for three hours if needed, and not answer a simple question for which they have an answer. There are witnesses who can do it (especially experts, who testify a lot), but it's not the norm.
Another way to look at it is to think of the deposition as something of an endurance contest--at least when dealing with a difficult witness. The witness is trying to avoid answering your question as long as they can; you are trying to keep going after the answer as long as you can. But for (most) witnesses, this is their first time in the contest, whereas for you, it's your job. So don't lose because you don't have the stamina-- learn how to re-phrase, re-approach, change tactics, change style, and most of all persist, persist, persist!
A few tips to keep in mind when you find yourself in an endurance contest with a difficult witness:
"Asked and Answered!": You will get this objection from a lot of opposing counsel. Ignore it. That's generally good advice on deposition objections, but particularly this one. First of all, what even is it? There isn't some rule that prohibits asking the same question multiple times. (Maybe some reading of FRE 403's language on "cumulative", but it's a stretch and in any event certainly not an objection to form.) More importantly -- don't ever even think (let alone argue about whether) asking the same question is prohibited. It isn't, and it's exactly the reason you are there. When your opponent objects as "asked and answered," take it as a signal you are doing the right thing, and keep going.
Breaks: Notice in the example above opposing counsel asked for a break before we had the answer we wanted. That's fine. It will happen -- it's a common technique to try to extract the witness from a tricky segment. Some lawyers fight it: "I need an answer to my question before we are taking a break." And sometimes that's OK, but ultimately it's a losing battle. Witnesses can take breaks; you can't lock them in the room. What I tend to do is embrace it. Use the break to think about a different approach and try it again after the break. Oftentimes you'll find the witness is less guarded after a break -- thinking that they have avoided the tricky topic. They haven't; dive back in.
Time: In general, time is on your side in a deposition. You have 7 hours and, as I said above, it's hard for a witness to dodge you for hours and hours if you stick with the Three Ps. But your time is not infinite, and you probably have more than one point you want to get out in a deposition, so you do need to be mindful of the clock. This is one of the reasons it is so important to set out in advance your goals for the deposition -- and why it's important not to be overly ambitious. A rule of thumb I often use is that each point takes about an hour to get. That means I try to go into each deposition with no more than seven critical answers I'm trying to get. I can have some "extra credit" ones if things go well, but they shouldn't be priorities. It also means that if a point is taking me more than an hour to get, I'll usually switch to something else and then come back to it if I have time at the end.
The Fourth P: If there is a fourth P, it's "practice." The best way to get good at finding ways to persist at asking the same question in different ways with different approaches is to practice. So yes, take as many depositions as you can, but also practice this when you are doing mock examinations and depo prep of your own witnesses.
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This wraps up my series on deposition tactics. Happy to discuss this further on LinkedIn or over email. Next time, we'll pick up a new subject.