Updated: Sep 3, 2020
If you're a trial attorney, you know that a witness's performance in a deposition can have a major impact on the trajectory of the case. If a plaintiff's witness performs poorly, the value of the case decreases. If a defendant's witness performs poorly, the value of the case increases.
Poor witness performance during a deposition can be categorized in two ways: what a person says or what a person does. Examples of errors in both categories follow:
Category I Errors
What the witness says during the deposition
Admits to something he doesn't believe.
Testifies about what someone else knew, should have done, should have known, etc.
Agrees to opposing counsel's interpretation of the facts.
Says something sarcastic.
Category II Errors
What the witness does during the deposition
Tries to win.
Tries to debate.
Looks to personal counsel before or while answering.
Answers before analyzing the question correctly.
Answers too quickly.
Looks at documents while being asked, or while answering questions.
Tries to outwit opposing counsel.
The two categories above are closely related. Errors in Category II can cause errors in Category I. For example, if a witness tries to win a deposition, he will view the encounter as an argument or debate. This will cause him to answer beyond the questions, provide unsolicited explanations, or justifications for his answers. Doing so necessarily means the witness will make mistakes in what he says (Category I).
Errors in both categories are bad. However, since believability is closely tied to likability, Category II errors (what a person does) can sometimes do more damage to a case than Category I errors (what a person says).
A case that provides good examples of both types of errors, is the deposition of Joe Exotic (reality "star" from the popular Netflix series "Tiger King"), in the copyright lawsuit Carole Baskin filed against him. Most of the examples will focus on Category II errors.
Before we get to Joe Exotic's mistakes, let's look at what he did well.
Joe's body language is good: He's sitting square with good posture, he's leaning forward (engaged), his hands are calm, and he's paying attention.
When the videographer struggles with Joe's last name"Schreibvogel," Joe handles it perfectly. He patiently waits for the videographer to make an attempt. When the videographer struggles and mispronounces his name, Joe pauses, corrects him politely, and gives an engaging smile. If Joe had maintained the same pleasant demeanor, and patient approach to each question and answer, his deposition could have been more effective.
In the remaining clips, Joe makes Category I and Category II errors.
Joe's attire suggests he isn't taking the deposition seriously, and jurors might find that disrespectful. He doesn't need to wear a suit, but a nondescript polo – and no hat – would have worked.
He repeats the question out loud instead of internally, which "looks" like he might be trying to buy time and make up a good answer.
He answers too quickly, not allowing himself enough time to think about the question and how to answer.
He flips through a document instead of staying focused on the question.
He editorializes. His answer would have been stronger if he had left it at "to post the truth about Carole Baskin." Instead he adds "for a change." This additional remark weakens the message and highlights a sore spot that opposing counsel can exploit.
Joe volunteers information. He was asked whether he remembers doing saga 39 about Carole Baskin killing rabbits. His response includes that he remembers doing 57 sagas of Carole Baskin. This answer gives opposing counsel more areas of inquiry and more chances of uncovering facts that will hurt Joe's case. Joe should have simply said, "I don't remember the specific saga number, but I do remember making a saga on that topic."
Joe continues his habit of thumbing through the document instead of paying attention. He should leave the document alone and focus on the question. If there's information in the document he needs to reference or review before answering, he should take time to read it, and then ask for the question to be repeated. Only then, once he's sure he understands what's being asked, should he answer the question.
Joe's demeanor is unprofessional. He rubs his face and appears to be annoyed. This type of nonverbal communication is usually a turnoff for jurors.
He stretches then rubs the back of his neck, which signals to opposing counsel that he's tired, disengaged, and his guard is down (i.e., time to attack). It also looks unprofessional.
Joe looks at his own attorney while answering, which jurors often interpret as "looking for the answer," or "looking for cues."
Joe's answers in this clip are bad. He's asked whether the lawsuit was already pending at the time he distributed photographs (the topic at issue in the copyright case). He agrees by saying "yeah." Next, opposing counsel inserts the premise that Joe was aware Big Cat Rescue didn't authorize the use of the photographs, to which Joe agrees. Joe then tries to outwit the attorney and somehow dodge liability by saying "yeah, except I didn't make these." But then the attorney gets Joe to admit that he participated in the demonstration and handed out the photos. Joe then denies handing out the photos because he was "the one in the bunny suit." The whole sequence is messy, contains contradictory testimony, and would likely annoy a jury.
Notice that most of the problems with Joe's testimony had to do with Category II errors, i.e., what Joe did rather than what Joe said. Sometimes Category II errors are worse than Category I errors. If the jury doesn't like a witness, they tune out, become annoyed, and sometimes disregard the entire testimony. When a jury reacts this way to a witness, even though the content of the testimony might be perfect, the delivery of the testimony damages the case.
When a witness commits Category II errors, he weakens his case. The result? Counsel now has to settle the case for an unfavorable amount, or risk going to trial and have portions – or all – of the deposition shown to the jury (and risk an even worse outcome). Not a good scenario.
After watching the clips above, one might be tempted to think, "normal" people don't act that way in depositions – that's just Joe Exotic... he's eccentric. Unfortunately, when it comes to depositions, "normal" people do act that way in depositions (and even worse), more often than you'd imagine. Don't let it happen to you. Call me before your witnesses are deposed; because, once the damage is done, it's very difficult to undo.
Watch my analysis here:
For more witness preparation advice, check out the following blog posts:
Jeff Dougherty, M.S.
President - Litigation IQ