Monday, August 14, 2006

Don't Assume The Worst Of The Deponent

In my work for the past few years, my exposure to depositions has been pretty much limited to reading transcripts. I miss actually conducting depositions. From a transcript, I can't see the witness sweat, I generally can't see awkward pauses (although sometimes a lawyer will note them for the record or the court reporter will use ellipses), and I can't hear tone of voice. The textual presentation cleans up the testimony in a way that removes a lot of the personality. But that's not always the case.

In one case, where I happen to know background information, a lawyer did a very diligent job of walking the witness through a chronology of events. But the lawyer came into the deposition with the apparent perspective that the witness would be hostile, and he questioned the witness in a manner that was at times patronizing, condescending, and at times combative and insulting. There were various points where if he had listened more carefully to what the witness was saying, rather than assuming that the testimony fit his preconception, he would have been able ask questions which would have led to some very valuable information. He also would have avoided antagonizing a witness who was in fact neutral, and might have realized that some of the answers that seemed evasive were designed to protect his position and not the adverse party's.

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