Tell the whole truth? I’ll do better than that

By Spencer Farris

BridgeTower Media Newswires

My high school coach told me that for every advantage you gain, there are disadvantages. I remember this clearly — as a bench warmer, I wasn’t distracted by playing when the coach was philosophizing. A tall basketball player rarely dribbles as well as one whose hands are closer to the floor. I was the short exception who couldn’t dribble, and I was slow to boot.

During a Zoom deposition, my coach’s words came back to me. I was able to defend my client’s remote deposition from my office — no driving or uncomfortable conference room chairs to deal with. Unfortunately, there was a jackhammer tearing up the street by my office. Literally. Those of us who practice in the suburbs are fortunate to have small, quaint offices. In a downtown high-rise office building, the noises on the street are missed. They were unmissable today.

Trying to hear, let alone object to a question, over a jackhammer is difficult. Add in a difficult case and an unnecessarily talkative client and things got out of control. My client was on a mission to stretch her two-hour deposition into four hours. Mission accomplished. She may have been more annoying than the jackhammer.

Lawyers ask direct questions to gather specific information. I always tell clients to listen to the question and then answer it, and only it.  Answering more than the question asked inevitably leads to another question — open a door and the opposing lawyer will bring more questions through it. Today’s witness saw her role as less of a question answerer and more of a tour guide through a maze that went nowhere.

One challenging part of defending a deposition is staying in the moment and not getting lost in the minutia. About the third “and where did you live before that” and my mind wanders. Today, it wandered to the different types of deposition witness.

Yes, and…

Good trial lawyers know how and when to improvise. Some of us take classes to get better at quick thinking, assuming that being able to think on your feet is a skill that can be taught. In improv comedy, we are taught to build on the statements of other players in the comedy game “Yes, and.” To play, you accept the previous player’s statement and add to it to build a funny story. The “Yes, and” witness takes a question and not only answers it, but offers up another inquiry. It isn’t funny for their lawyer.

“Yes, I was stopped at the red light. And I was thinking of the last time I had gotten hit at a stoplight.”

“Yes, my back hurt. And it hurt like it did after my surgery ten years ago.”

The “Yes, and” witness thinks he is helping his case. He is rarely right.

Yes, but…

Some witnesses think they are smarter than the questioning lawyer. They may be, but they are unlikely to be better in a deposition. The “Yes, but” witness thinks she can control the discussion by showing the other lawyer that they don’t know what the case is about.

“Yes, I had a prior neck injury, but it wasn’t bothering me that day because I was on pain medication.”

“Yes, I hit the other car, but I didn’t see it because I was texting my mom that I was driving safely.”

“Yes, but” witnesses get kicked right in the … yes, you know.

The Rambler

A ramblin’ man is a romantic archetype of a person with no destination in mind as they travel. The Rambler is not the least bit romantic. This witness starts to answer a straightforward question but takes so many twists and turns that they don’t arrive at a responsive answer. They take a lot of time to get there, and the “there” answer has nothing to do with the question. Even lawyers who are billing by the hour get frustrated with this type of witness. Court reporters who bill by the page, conversely, enjoy the trip.

The Angry Man

Twelve Angry Men was an enjoyable cinematic classic about jurors. The Angry Man is not the least bit enjoyable. They are the smartest person in the room and think the whole judicial process is a waste of their precious time. This person is mad that they are being deposed and they make sure everyone knows it.

“State your name.”

“You know my name. The court reporter just said it.”

“How old are you?”

“What does that matter?”

“Sir, these are just background questions.”

“You don’t need to know my background, just ask me about this case.”

The Angry Man is contagious and by the end of his or her deposition, everyone else is angry.  At trial, the Angry Man leaves even angrier than they started because angry jurors show their anger with their verdict.

The Secret Agent

The (alleged) goal of discovery is to eliminate mysteries and uncover the truth in a case. The Secret Agent takes the oath “to tell the whole truth” with fingers crossed. Sometimes it is a corporate witness who comes to testify without looking at any of the documents that have been produced so that it is impossible to give any meaningful testimony. Other times it is someone making specific claims that she can’t support, like the amount of wages she lost or why she missed work. Without a smokescreen button, the Secret Agent rarely escapes a deposition unscathed.

My “yes, and” client’s deposition finally ended, about the same time as the jackhammer stopped. I don’t know if aspirin makers sponsor jackhammer operators, but those guys working downstairs should have a patch on their jackets if they do. In fairness, I don’t know if my pounding headache was all their fault.

©2023 With All Due Respect. Spencer Farris is the founding partner of The S.E. Farris Law Firm. His best improv character was Blind as a Bat Man, a superhero who bumped into everything. Comments or criticisms about this column may be sent c/o this publication or directly to me via email at [email protected].