"How to take a ______ Deposition" was the name of the CLE seminar found myself at today. I’m not giving the exact name because I want don’t want to put bad Google-juice on the speaker, a nice guy from California who early on confessed that he was teaching seminars because a few years ago his phone stopped ringing and so he had to give up his law practice. "Great," I thought to myself as I looked at my watch, "at least he’s not teaching the art of persuasion."
In addition to 6.0 hours of CLE credit, I was hoping to get some ideas to add to my deposition tips for new lawyers. Overall, I thought the seminar was a waste of time. The guy was clearly trying to extend one hour of material into a day-long seminar. Still, he had a one or two good tips. Such as, if you are trying to box the witness in and the witness gives a weasely response use the old "so what you are saying is…" technique to pin them down. Of course, the best advice is the easiest to understand but the hardest to heed. Namely, you have to listen very closely to the witness’ answer and make sure that you understand what the witness actually said. And you have to know exactly what question you asked, which seems pretty obvious.
I remember when I was a judicial clerk we had a case where a guy was charged with perjury before the Grand Jury. He was a target of a criminal investigation, but they didn’t have the evidence to charge him with the substantive offense they were investigating. But since he had more or less denied receiving a gift from a known criminal who was clearly trying to bribe the guy to award him a contract they figured they could get him on the perjury count. But did he really deny it?
In the Grand Jury proceedings the prosecutor asked him a question like "you got a watch from Joe Schmoe, didn’t you?" The witness intended to lie so he said "no." A couple of weeks after the testimony the prosecutor found out that the witness had actually received the watch he "denied" getting, and so they charged him with perjury.
I may not have the verbiage of the prosecutor’s question exactly right, but the thing I remember is that after the prosecution put on its case the defense lawyer moved for dismissal of the perjury count because the answer that the defendant gave in response to the prosecutor’s question was "literally true." In other words, the prosecutor had asked a poorly framed question and the defendant’s answer was inadvertently true. After the defense motion was made the judge took a brief recess. I did some quick research and found Fifth Circuit cases that said, basically, even if you intend to lie to a Grand Jury you can’t be convicted if your answer is "literally true."
Anyway, that’s a long story to make a simple point. Words matter when you are asking witnesses questions, and you need to pay careful attention to them. And if you want to make your job easier it’s a good idea to use as few words as possible, and to force your witnesses to do the same thing.
Oh, and definitely don’t do what the lawyer in this deposition did.
P.S. If you want a better practice, check out this Ultimate Guide.