Witness Preparation for Deposition Testimony - The Power of the Pause

Updated: May 18, 2020



A funny but very instructional thing happened to me early in my trial consulting career. I was working with counsel on a medical malpractice case to help a physician prepare for her deposition testimony. During the course of working with the doctor on the delivery of her testimony (body language, tone of voice, demeanor, and demonstration of confidence), one of my instructions to her was that she needed to pause for no less than 2 seconds before she answered any question. This would help her control the questioning pace, think through each question before answering, identify any problems with each question, stay in control of the deposition, remain calm, and reduce her anxiety (among many other benefits of taking it slow).


As with every witness, during our practice sessions, the doctor struggled with the pause. She thought she was pausing for 2 seconds before answering each question, when in fact she was pausing for less than 1/2 of one second (I timed her). In other words, she wasn't pausing at all. After a substantial amount of practice, the doctor finally embraced the pause and our practice session continued. Things seemed to be going well during the introductory and innocuous questions (name, address, education, years of practicing medicine, etc.). However, once the doctor had to handle the more difficult case specific questions, everything went south. Her answers were sometimes medically inaccurate, sometimes not responsive to the actual question, and sometimes contrary to the actual facts of the case. This was an intelligent woman but her answers didn't reflect it. I kept thinking to myself, "I'm not even a doctor and I'd do much better in her deposition than she will do." I also kept thinking to myself, "I'm getting paid to help this witness improve and she keeps failing. If I don't figure this out, this client will never call me again."


So what was going on? What was I missing? After continuing for some more frustratingly painful practice questions I noticed something. While the doctor was pausing for 2 seconds, it appeared to that her lips were moving, ever so slightly. So I kept watching, and yes, her lips were definitely moving. Was she quietly saying her answer in her head before speaking? Was this an observable part of an internal dialogue? Was she repeating the question to herself before answering? Was she counting "one one-thousand, two one-thousand?"


Either way I had to figure it out and fix it, so I called for a "timeout" and simply asked her what she was doing during her 2-second pause. Sure enough she admitted that she was counting "one one-thousand, two one-thousand" after every question. Needless to say this is not exactly what I meant when I told her to pause for two seconds, but this was my fault not hers.


How to Pause Correctly


I quickly learned that I wasn't teaching how to pause, I was only teaching to pause. So I broke it down for her in explicit terms: No matter how simple the question seems, she needed to literally ask herself the following before answering any question:

  1. Do I understand the Question?

  2. Am I the person that knows the answer?

  3. Does the question require a factual answer or an interpretation of what a fact or set of facts means?

  4. Is there an exception (to what the lawyer wants me to accept).

This simple, albeit unnatural method of approaching every question, requires think time, i.e., it forces a pause. And the pause, when done properly, will increase the effectiveness of witness testimony in the following ways:

  1. Factual errors in testimony will decrease.

  2. Agreement to mischaracterized evidence will decrease.

  3. Agreement to opposing counsel's interpretation of the facts will decrease.

  4. Witnesses will answer the actual questions and nothing more.

  5. Witnesses will only testify to what they know and not what someone else might know.

  6. Witnesses will avoid being boxed in by absolutes.

  7. Witnesses, not opposing counsel, will control the pace.

  8. Witnesses will be more calm.

  9. Witness anxiety will decrease.

Back to the story:


Once the doctor started pausing correctly (with a purpose), there was a drastic improvement in her answers. Her testimony went from poor to excellent in short order and she transformed from being a liability to the case to being an asset. She also went on to testify beautifully in her actual deposition.

Conclusion


Every witness is different. Under the rigors of the adversarial setting, some witnesses have natural characteristics that will make them better or worse than other witnesses. However, regardless of their inherent strengths or weaknesses, every witness can improve. The pause as outlined above can play a major role in facilitating this improvement and help mitigate common (and potentially catastrophic) mistakes, and turn bad witnesses good and good witnesses great.


Jeff Dougherty, M.S.

President - Litigation IQ

713 392 8135

Jeff@LitigationIQ.com

www.LitigationIQ.com



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