Evasive Witnesses Part Two – “I Don’t Know”

Dealing With Evasive Witnesses Part 2 – “I don’t know”

In my last Blog, I talked about dealing with a deposition where the witness, for whatever reason, will not provide reasonably fair and honest testimony. We looked at the dozen most common evasive, uncooperative behaviors from these witnesses and here we provide suggested techniques for what to do when you encounter one of these witnesses.

Book Cover "Advanced Depositions Strategy & Practice

Category One: “I don’t know.”

The first category is witnesses who respond, “I don’t know.” This category includes witnesses who say, “I can’t answer that,” or “I’m not an expert on that,” as well as witnesses who play dumb: “I never heard of that,” “I don’t know,” or “I don’t know who would know.”

When you encounter a corporate witness or defendant who doesn’t know or can’t answer a question, you have two alternatives, depending on your strategy in the the case. You must nail down the fact that this witness doesn’t know something importance, convince the witness that while she may not know or is not sure, there is a plausible explanation, definition, or standard that she will inevitably accept as true.

For either of those two strategic choices, you may begin questions with a review on the record of questions and answers this witness gave previously, to establish that witness:

* Is representing the corporation, not herself as an individual

* Has been designated by the corporation as the person “with the most knowledge concerning the following designated matters, and as to such information that is known or reasonably available to the organization.”

* Is the person who has ben designated by the corporation to speak on it’s behalf and is knowledgeable about

*Hiring and screening employees.

When you have strategically chosen to lock in that the witness does not know, does not remember, and so on, the second step is to restate and summarize the witnesses inability to answer. Then, make sure that this witness will not be able to change her testimony (box in the witness). With the 30(b)(6) witness who will not answer the qualifications questions, your choice is probably going to be to adjourn the deposition. But how do you do so and create a record that will have the defendant paying the costs.

How do you create a record that the witness is completely unprepared and unqualified to speak for the defendant? It may by pretty easy, but not always. Use some version of FDW (facts/witnesses/documents or ”four wheel drive”) to box her in and show that she is unprepared and unqualified. Evasive witnesses explain a change in testimony by using one or more of three broad categories of information that a witness did not have or consider during her deposition. These three broad categories are: facts she did not know or recollect, witnesses or individuals she had not spoken with at the time of the deposition, and documents she had not seen, recollected, or considered.

FDW serves to remind the examiner to ask the deponent whether there are any facts, witnesses, or documents that might be the basis of the witness changing from “I don’t know” to something else. If none of those things exist, there is no basis for the witness’s testimony to change.

I wish I could go into some more detailed questioning tactics here in this Blog, you know the story “there’s just never enough time.” But, if you want to get serious about your trial work, check out my book “Advanced Depositions Strategy and Practice” it’s outlines the Miller Method of trial preparation and the accompanying DVD is heavy on the important information on this subject and many more insights from top Plaintiff lawyers nationwide.

If you would like to talk about your big case and see if the Miller Method is something you might want to explore give me a call. See what other successful trial lawyer say about the Miller Method

Thanks for reading,

Phillip Miller

Trial Consultant/Trial Lawyer

Miller Law Office

Nashville Tennessee


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