Part 5: Evasive Witnesses That Use Spiteful Precision
As a trial lawyer I always hate it when you are taking a defendant witness deposition and they continue to disrupt your questioning by asking you to define the words in your questions. As a trial consultant I have developed several ways to prepare for and approach this type of evasive witness.
This category of evasive witnesses demand that you define your terms. One of the oldest evasive witness tricks is to ask the questioner to define a term used in the question. It puts the witness back in control, gives her time to consider the question, and disrupts the questioner’s flow. I’d like to share four tried and true ways to deal with this type of evasive witness.
Approach A: Ask for and Adopt Word Meanings
The first, most natural technique is to ask the witness to define the term, and then incorporate her definition into the question. For example:
Q: Wouldn’t you agree that t would be improper for a nursing home to hire an aide who has a past history of patient abuse?
A: What do you mean by patient abuse?
Q: What does patient abuse mean to you?
A: I guess it means hurting or injuring a patient.
Q: So, wouldn’t you agree that it would be improper for a nursing home to hire someone who has a past history of hurting or injuring a patient?
Approach B: Use Life Experiences to Create Definitions
In this approach, you can use the witness’ own life experiences to create reasonable, fair definitions. This method is subtle and requires that you think about the witness as a person and the circumstances where she may have used the term herself. Then, use those life experiences to move the witness toward an honest answer.
Q: Do you agree that your company has a duty to hire safe drivers?
A: What do you mean by safe?
Q: Do you have kids who are in school?
Q: When they leave for school or some other activity, have you ever told them to “be safe”?
Q: And you expect them to understand what that meant, didn’t you?
Q: So you have some idea what someone may be talking about when they use the words “safe drivers”?
Q: One aspect of “safe driver” is that he obeys the speed limit, true?
Q: Is it important that tractor-trailer drivers obey the speed limit?
Q: Why is it important that tractor-trailer drivers obey the speed limit?
A: If they don’t, they could be a hazard to themselves or others
Q: Another aspect of “safe driver” is that he/she obeys the traffic laws, isn’t that true?
Q: Is it important that tractor-trailer drivers obey the traffic laws?
A: If they don’t, they could be a hazard to themselves or others.
Q: Another aspect of a “safe driver” is that they get enough rest while they are on the road, correct?
Q: Someone who repeatedly got speeding tickets and had moving violations wouldn’t be a safe driver, would he?
A: No, he wouldn’t.
Q: Someone who operated a tractor-trailer without getting the required rest wouldn’t be a safe driver either, would he?
Q: So you would agree that your company has a duty to hire safe drivers?
Approach C: Use a Rule for the Definition
Q: Wouldn’t you agree that it would be improper for a nursing home to hire an aide who had a past history of patient abuse?
A: What do you mean by “patient abuse” ?
Q: I am handing you a copy of State Regulation 1.11.7. I have highlighted the definition for patient abuse and it says, “Abuse means causing intentional pain or harm. This includes physical, mental, verbal, psychological, and sexual abuse, corporal punishment unreasonable seclusion, and intimidation.” Is that correct?
Q: So, you would agree that the definition of abuse and intimidation?
Q: And you would agree that state regulations like this apply to your facility?
Q: So, wouldn’t you agree that it would be improper for a nursing home to hire someone who had a past history of psychological abuse and intimidation of a patient?
Approach D: Use a Dictionary or Thesaurus
Sometime there isn’t a rule or regulation you can use, but the definition of a term is a key part of your case and your questioning.
Q: Would it be reckless to hire an employee with a history of patient abuse?
A: What do you mean by reckless?
Q: Have you ever used a dictionary?
Q: Tell me about it [This is an open-ended question—get the witness to commit to familiarity.}
Q: Were you taught to use the dictionary whenever you were unsure of the definition of a word?
Q: Is it fair to say you, like most people, would consider the dictionary definitions the correct definition?
Q: If you had a disagreement with your wife or child about the definition of a word, might you use the dictionary as a tie-breaker to resolve who is right?
Q: Let’s use the dictionary and look up the word “Reckless”. Here it says, “Marked by a lack of thought about the danger or other possible undesirable consequences.” Do you agree with that definition?
Q: Would you agree that hiring someone with a history of patient abuse might show a lack of thought about the possible dangers or undesirable consequences?
Now use the same pattern of questions using a Thesaurus instead of a dictionary. I do not recommend this technique if the witness is poorly educated.
This ends the fifth Blog in a series of Blogs addressing deposition techniques for evasive witnesses to see the others link here. If you have a big case and you want to see if using the Miller Method of trial preparation would help you give me a call at 615-356-2000 and let’s talk about it. If you would like to see what my past clients have to say about the Miller Method check this link. In my book on this topic I go deeper into these issues.
Thanks for reading my Blogs
Miller Law Offices