Updated: Feb 11, 2021
Post #2 in the series of "Celebrity Depositions" analyzed (video clips included)
Have you ever had a difficult witness? A witness who does not heed your advice and whose testimony during deposition may risk the case? Now imagine a scenario in which the same witness becomes an asset rather than a liability. This is the difference proper witness preparation can make – witness preparation with counsel and someone who specializes in witness psychology.
The deposition of Roger Stone illustrates this beautifully. As somebody who is in the profession of helping difficult witnesses improve, it was hard to watch, but I analyzed all 5 1/2 hours of available video deposition and selected a few crucial moments that illustrate what went wrong. One thing became clear, Roger Stone missed an opportunity in seeking my advice as his mistakes could have easily been avoided.
Roger's deposition is a great example of how emotions can cause witnesses to do and say things under oath that hurt their own cases. When this happens to a plaintiff's witness, the value of the case decreases, and when it happens to a defense witness, the value of the case increases. This is all accentuated when the deposition is video recorded, because the worst clips might be shown to a jury. In such a situation, the party with the bad deposition testimony faces unfavorable options: settle the case for an undesirable amount, or risk going to trial and face an even worse outcome.
What makes testimony bad?
Poor witness performance during a deposition can be categorized in two ways: Category I, what a person says, and Category II, what a person does. Examples of errors in both categories are discussed in detail here, in the analysis of Joe Exotic's deposition. In short, Category I errors have to do with extraneous testimony, which can lead to factually incorrect testimony, and Category II errors have to do with how the witness testifies (e.g., body language, demeanor) or what the witness tries to accomplish during the testimony (e.g., win, argue, debate).
The two categories are closely related. Errors in Category II can cause errors in Category I. For example, if a witness becomes emotional and angry, as will be highlighted below, he will fight, argue, debate, and end up saying things he shouldn’t, i.e., testifying incorrectly.
Errors in both categories are bad: Changing incorrect testimony (Category I) in a credible way is next to impossible, and getting a jury to want to believe an unlikeable witness (Category II) is maybe even more difficult.
Roger Stone's deposition is a case study in how Category II errors influence Category I errors.
Roger isn't even sworn in yet and he's off to a bad start. The videographer has started speaking and Roger is looking at his phone. This means he's not taking the deposition seriously. Whatever is on his phone is seemingly more important than the deposition.
Roger should have shut his phone off before he entered the conference room.
Roger already looks upset, and he hasn't even been asked a question. You can see it in his facial expressions. This is a problem because jurors are hypersensitive to nonverbal communication cues, and they sometimes disregard the content of the testimony because the delivery was bad (see here and here for more on this topic).
Roger justifies his answer unnecessarily and volunteers information that helps the other side. When asked what he did to look for documents in this case, he says, "I asked my attorney to conduct the search." He should have stopped there. Instead he adds "...because they had just conducted a search regarding federal matters." Now opposing counsel gets to ask all sorts of questions on the record about the federal matters. Ultimately, Roger's own attorney ends up citing all of Roger's legal matters, including a federal criminal matter.
Roger thought the justification would help his case; instead, it helped the opposition by making Roger look like a guy with a lot of legal problems, including a criminal matter. This supports the plaintiff's theme that Roger is the type of guy who would engage in defamation.
Witnesses should never justify an answer unless asked.
Notice that in this exchange and the ones that follow, Roger's attorney is trying to keep him in check. He puts his hand on his arm, he tells him to stop, and at times he seems to give up and just let Roger carry on. Roger is making his own lawyer's life difficult and his ability to defend the case more challenging than it has to be.
Just 13 minutes after Roger Stone is sworn in, his emotions are evident. Before he says a word in this clip, his body language and demeanor are speaking volumes (arms crossed, pursed lips, disapproving head shakes). It looks like he's seething. Roger should sit patiently, with a neutral or pleasant facial expression while the question is being asked.
When Roger does speak, he responds too quickly, thereby answering a question he didn't need to answer (making his lawyer's job more difficult).
Roger then interjects himself into a discussion when opposing counsel addresses his own lawyer. Unless Roger is being asked a question, he should sit quietly and patiently, and he should maintain a neutral body position.
The way Roger interjects himself indicates he's viewing the deposition as an argument, causing him to do and say things he shouldn't.
Roger goes on the attack, uses foul language, and calls opposing counsel an A-hole. Then Roger plays the victim. If Roger is a victim, he needs the jury to conclude that on their own. The best way to do that is to remain professional at all times, and let opposing counsel make himself look bad. Roger should not give opposing counsel sound bites to play for the jury that make him look like a hothead, someone who can't control his emotions, or the type of person who would engage in defamation.
As the deposition wears on, Roger's frustration is on full display. He seems to come unglued at the drop of a hat. He's asked if 2+2=4 and he goes on an angry rant. Instead, Roger should have simply said "yes, 2+2=4." If opposing counsel then tried to draw a conclusion that Roger didn't agree with, all Roger would need to do is say, "I disagree," or "completely untrue," and then wait patiently for the next question.
Instead, Roger mouths "F$#& you," then calls opposing counsel a "little bitch." This reaction provides opposing counsel more ammunition to make Roger "look" like the type of guy who might engage in defamation.
As Roger's rant continues, he grimaces, becomes physically agitated, and uses the F-word again. None of this behavior helps Roger's case. He's doing opposing counsel's work for him.
Roger responds to opposing counsel's question by asking the relevance of the question. This isn't Roger's role, it's his lawyer's, and it makes him look like he's trying to avoid the question.
Next, Roger answers, "I don't recall" with a sarcastic tone and expression, suggesting he knows the answer, the answer is bad, and he's trying to avoid it. If the truth was that he didn't recall, he should have simply said, "As I'm sitting here right now, I just can't remember," and left it at that.
Roger continues to treat the questions like an argument or debate. He asks opposing counsel questions, and again mouths the words "F$#& you" in response to a question. Roger isn't "winning" the engagements, he's just making himself look bad and providing opposing counsel with more ammunition to use against him in settlement negotiations, or at trial.
After attacking opposing counsel and refusing to answer questions, Roger claims he's being harassed. Roger's behavior and language aren't likely to garner much sympathy from a jury. He's acting like the type of person who would do the harassing.
Roger immediately refuses to answer the question posed by opposing counsel. This type of response could signal to jurors he's trying to hide something.
As the exchange continues, Roger argues, grimaces, and bares his teeth. He looks agitated, furious, obstinate, and possibly unstable. These aren't characteristics that engender juror trust.
Next, Roger interrupts opposing counsel, talks over him, makes snarky remarks, and calls him an egomaniac. Ultimately Roger refuses to answer the attorney's question.
The back and forth continues, and the Q/A format breaks down completely. Roger's facial expressions continue to show rage and contempt for opposing counsel, and Roger looks like he's lost control of his emotions. None of this helps Roger's case; it only weakens it and strengthens the opposition.
Note: The following clip is out of order and takes place about 11 minutes into the deposition, and it shows Roger Stone testifying well as a contrast to the clips above.
Roger has good body positioning. He's leaning forward (engaged), his hands are calm and neutral, and he looks like he's at peace.
Roger waits for the question and then answers without editorializing, fighting, debating, or arguing. He answers only the question asked and then waits patiently for the next question.
Once the second question is posed, Roger waits, thinks for a second and responds, just as he should. He's calm, he answers only the question asked, he doesn't argue, fight, or justify his answer.
If Roger had maintained this approach throughout his deposition, things would have gone so much better for him. In fact, he might have been able to turn the tables on opposing counsel by not fighting (see here for more on this topic.)
To see more of Roger Stone's Category I and Category II errors, check out this compilation of his "greatest hits:"
Roger Stone isn't alone. The feelings he expressed during his deposition are experienced by most people in the midst of litigation, especially people who feel they have been unjustly accused and that the law is being weaponized against them. It brings out the worst in people. It's stressful, frustrating, and can be financially devastating. But lashing out in a deposition or on the witness stand is rarely helpful, and usually very hurtful, to a case. When it happens, it's usually the witness, not the lawyer, who looks bad.
Check out my analysis here:
For more witness preparation advice, check out the following blog posts:
Jeff Dougherty, M.S.
President - Litigation IQ