Deposition Preparation – Dealing With Evasive Witnesses

Dealing With Evasive Witnesses

Phillip Miller

Trial Lawyer, Trial Consultant, Author

Laziness and lack of preparation can doom any discovery effort. You may have taken this kind of deposition before and everything went great, but this time, the witness seems unmanageable. You seem to be doing everything right, but you are not getting anything. The most obvious conclusions and the answers that favor your client’s case become muddied responses that have no value.

How do we deal with a deposition where the witness, for whatever reason, will not provide reasonably fair and honest testimony. In the next four Blogs I’ll categorize and define what I believe are the dozen most common evasive, uncooperative behaviors and provide suggested techniques for what to do when you encounter one of these witnesses. While the primary focus of this Blog is on depositions of corporate representatives these techniques work very well across the board.

Common Evasive techniques, including people who say:

A: I don’t know, I can’t answer that.

A: I’m not an expert on that.

A: I don’t know where I’ve heard or read that before.

A: I’ve never heard of that before.

A: I’m not going to answer because I’m here as a fact witness, not as an expert to give opinions.

A: Define your terms.

A: That’s just a guideline, not a rule. [That is, cases where the witness tries to avoid being pinned down.]

A: I don’t understand the question.

A: For the most part.

A: Pretty much all.

A: Not necessarily. [That is, cases where the witness tries to avoid being pinned down.]


I will also talk about:

* The witness who claims, “I can’t remember”, “I don’t remember”, or “I’m not sure,” about the dates, times, distances, or any quantifying amounts

* The defense witness who repeatedly runs, giving long narrative responses

* The witness who constantly lays down rabbit trails, or long digressions in directions you don’t want to go

* The witness who interrupts the question with his response

* The witness who refuses to answer because of instructions from his lawyer

In every deposition plan, we must anticipate encountering an evasive, non-cooperative witness. You will only uncover the truth if you anticipate non-responsive answers and devise alternate questions and approaches. You must anticipate evasive responses and have a practiced, written strategy to deal with them on your case critical issues and questions. In this upcoming series of Blogs, I’m going to explore effective techniques that can be used in a variety of circumstances.

I’ll end today’s Blog with a Strategic Planning Point: An option for the examining of any evasive witness is to structure portions of the examination around documents, photographs, and so on that “speak for themselves.” This is not to suggest that the evasive witness won’t try to run, but if you choose exhibits carefully, the witness’s evasive answers in the context of the document or photograph will compromise her credibility.

In the next Blog I’ll address Category 1: “I Don’t know.” Join me then, I look forward to hearing from you. If you would like to discuss your case and find out about the Miller Method of trial preparation just call me a call.

Thanks for reading,

Phillip Miller

Trial Consultant/Trial Lawyer

Miller Law Office

Nashville Tennessee


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