FWD:  Reliable winter driving, reliable tool in depositions

It’s that time of year. Snow is in the forecast and you break out the four-wheel-drive vehicle for its reliability in the questionable weather. FWD is proven to help you navigate through the unpredictable snow, sleet and ice. 

By that same token, we want to be able to rely on deposition testimony as carved in stone. While there is no silver bullet, FWD makes it difficult for a witness to credibly change their testimony. When FWD is well done, witnesses will know they have been boxed in and will not be enthusiastic about changing what they said.

What is FWD?

FWD is an acronym for Facts, Witnesses, and Documents (or four-wheel-drive). If witnesses try to explain their change in testimony after the deposition, they must use one of these three broad categories of “new” information. You should customize the questions to fit the case.

Facts: the witness did not know, had not seen, or did not recollect at the time of deposition response.

Witnesses:  people, colleagues, experts, that the witness did not know about or had not spoken to at the time of the deposition.

Documents:  studies, records, reports, photos that the witness had not seen, had not been provided, did not recollect or did not consider at the time of deposition.

When using FWD, if the witness suggests that there may be someone or something else that could cause them to change their testimony, you will typically ask about other (w)itnesses who might provide information. Then, ask about (d)ocuments that might do the same. Repeatedly use (f)acts in your questions. (FWD.)

Be Thorough

When FWD used, most witnesses will not be comfortable changing their testimony. They have already been asked, in detail, whether there is anything or anyone that might cause them to change their testimony. Cementing their final responses with “Are you sure?”, “That’s it, nothing more?” is the final door to close on this portion of their testimony.

  • Excerpt from Advanced Depositions Strategy & Practice, available for purchase here.
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