Never assume the best of witnesses. Perhaps you wouldn't try to shade the truth if you were being deposed, but that's not true of many witnesses. When taking depositions, a little cynicism goes a long way. Unless you're certain otherwise, assume the witness is lying.
There are a number of ways witnesses can try to fool you at depositions. Here are just a few:
- The witness can knowingly make a false statement. “The light was green,” he might say, when he knows it was red.
- The witness can state he doesn’t know the answer to your question when, in fact, he knows the answer very well.
- The witness can say “I don’t remember,” when, in fact, he does remember.
- The witness can give one of the words in your question a meaning he knows is false, so that he can answer your question in a way that seems to be accurate, though it really isn’t. “It depends on what the meaning of the word is is,” said one famous deponent.
- The witness can answer a question that you didn't ask, hoping you won't notice.
In one of my deposition podcasts, I noted that you should be on alert for witnesses who give away their deceptions in the way they give their answers. If you think a witness is trying to fool you, don’t be bashful about circling around and starting the line of questions from a new angle. "Muck around in it," a lawyer I know used to say. Wear the witness down by refusing to give up. Make it clear that the deposition won't end until you get full, truthful, and complete answers.
Good points. Then there are the witness who not only don't know, but don't know how to know.
"Sir, if I told you that I would give you a million dollars cash if you could get the answer to that question for me in 24 hours--who might you talk to, to find out that answer?"
"I don't know."
"What documents would you look for, if you knew that it meant a million dollars if you found them?"
"I don't know."
Posted by: mythago | February 17, 2007 at 10:30 PM