Common Deposition Error: Repeating Yourself

Once you get good testimony at a deposition, you're best to leave the testimony alone. Take the good answer from the witness and move on.

It seems like obvious advice, but some lawyers can't wait to read the good answer in the printed transcript. Perhaps not believing their good fortune, or perhaps wanting to relive the excitement of the five minutes when everything was going their way, they return to the question again a little later in the deposition. They ask the question to which they got a good answer a second time.

Why give the witness a chance to change or explain his answer? I can think of only a couple of reasons, neither of them very good: (1) You're not sure whether you've pinned the witness down or (2) you can't remember what the witness said.

Both of these possibilities should be dealt with on the first go-round. First, pin the witness down after you get good testimony. Second, take good notes. Then move on to the next area of questioning--never to return until trial, when it will be much easier to impeach the witness than during the deposition when you have no transcript.

Comments

[Elliott]

There's one situation where you might want to consider breaking this rule.

Often, a "good answer" gets stuck in the middle of a winding, narrative answer. Usually, that answer contains information that we'd rather not hear again during trial. Unfortunately, we'll hear the -entire- answer during trial, because of the rule of completeness.

In those situations, it may be worthwhile to come back to the same issue much later in the deposition, so that you can "clean up" the impeachment point.

Here's how to do it. About 20 minutes later, simply state, "Let's make sure I've got this right..." and repeat the good answer.

Now your valuable impeachment material will stand alone on the page. This makes it easier to impeach the witness, while also reducing the chances that you'll be ordered to read in the witness's entire narrative answer.

I hope that's helpful.

Best wishes for success in your next trial,
-Elliott

Elliott Wilcox
http://www.TrialTheater.com