Sybil Dunlop
BridgeTower Media Newswires
I’m teaching a five-hour course on depositions called “Depositions: Becoming the Authority and Controlling the Conversation.” When asked to teach the course, I initially balked. Who wants to listen to me talk for five hours? And why am I an expert on depositions? But I teach fairly frequently these days. And my inner voice quickly piped up with answers. It said: If you focus on making the presentation interesting and you do your research, you can do this.
So for the past several weeks, I’ve been reading everything I can get my hands on regarding depositions. Taking them. Defending them. Corporate representative depositions. Expert depositions. Errata sheets. Electronic exhibits. Everything.
And I’ve also been reviewing my own deposition transcripts, combing them for interesting exchanges, failures, and successes that could be used as teaching moments. I think I’ve got five hours of material. But in this column, I wanted to share my three favorite takeaways.
Willpower depletion is real
A growing body of research shows resisting repeated temptations takes a mental toll. For this reason, some experts have compared willpower to a muscle that can get fatigued from overuse. In one study, for example, researchers brought subjects into a room filled with the smell of fresh-baked cookies. On a table, the researchers displayed a plate of cookies and a bowl of radishes. The researchers asked some participants to eat radishes and some to eat cookies. After indulging, the participants were given 30 minutes to complete a difficult puzzle. The researchers found that people who ate radishes (and resisted the cookies) gave up on the puzzle after 8 minutes (on average). While the cookie-eaters attempted the puzzle for 19 minutes (on average). The researchers concluded that by drawing on their willpower to resist the cookies, the participants’ self-control in other situations diminished.
Knowing about willpower depletion has changed the way that I take depositions. Most witnesses are working hard in a deposition—engaging to ensure they listen to each question, pause before answering, and only answer the question asked. This isn’t the way we normally communicate with people. And it takes willpower. This means that witnesses, generally, will lose focus as the day progresses. Questions that might have received full focus early in the morning will receive less focus in the afternoon.
Knowing this, I think about when I want to ask my most difficult questions. I usually want to save them for the late afternoon, as the witness is getting tired. I don’t want the witness resisting the temptation of answering my question, I want them to give up on the puzzle.
Release the rope
I learned this technique from a jury consultant who was offering advice to someone before a cross examination. The witness had struggled during a previous cross examination, becoming defensive when pressed about his qualifications and previous testimony. The jury consultant explained that jurors don’t like watching a struggle. Things become much less interesting if you just “release the rope.” The expression stems from tug-o-war. Two parties can fight, pulling the rope. Or the opponent can just release the rope, releasing the tension. How does this work during a cross examination? When asked a difficult question (“You always testify on behalf of school districts, right? Not students?”) just answer truthfully and lead with yes or no: “Yes, I have always been hired as an expert by school districts, not students.” When you start an answer with explanation or justification, the jury senses the fight and the witness looks obstructionist. Answering the question—without batting an eyelash—is the best way to minimize the impact. And you can always explain your answer on re-direct (during a deposition, of course, you don’t need to explain your case. You can save it for trial).
Digital exhibits are all the rage
I used a digital exhibit for the first time in 2017. I needed to ask the witness about several Excel sheets that he had created, and I was interested in asking about the formulas, not just the numbers on the paper. I hadn’t seen anyone use digital exhibits before, so it was with some anxiety that I asked the other side if I could hand a pre-loaded Microsoft Surface to the witness. Everyone loved it. The witness—who had terrible vision—loved the fact that he could increase the size of the numbers so that he could read them. Opposing counsel loved it because I emailed him a copy of the exhibits and he could follow along. And I loved it because I got to ask the questions that I wanted to ask. Having done it once, the possibilities suddenly seemed endless. I could ask the witness to annotate the exhibits on the Surface and I could save the annotations. I could show the witness pictures in color (instead of horrible black and white copies of pictures). I could minimize the number of bankers boxes that I needed to drag to depositions. I’m a convert and encourage everyone to try electronic deposition exhibits at least once. My only caveat? Make sure you run your plan by opposing counsel in advance so you don’t end up having a fight about the appropriateness of your approach at the deposition.
So that’s it—my three favorite pieces of deposition advice. I’ve got four and a half more hours of material. But I promise that this is the best stuff.
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Sybil Dunlop is a partner at Greene Espel PLLP in the Greater Minneapolis-St. Paul area.
