Authored By: Michael Flynn
Excerpt
You are the lawyer representing a party in a big lawsuit! The stakes are high for both parties in the lawsuit and the facts and the law of the case are both interesting and challenging. The case promises to be hotly contested. You have prepared as well as you can with detailed proof charts covering every witness culled from extensive investigation and document analysis. Now it is time to move forward and execute your plan and see what happens. A major step in the execution of your litigation plan is taking the deposition of the potentially adverse, even hostile, opposing party and witnesses. You have put together a deposition plan for each witness that includes learning everything you can from each witness, confirming with the witness what you think you already know, testing the witness to see if you can gain some valuable admissions, and tying down the facts that each witness testifies about. You are ready! Then, at the deposition of a key witness, this happens:
Q: Who else was present at the final meeting you attended confirming the final design of the table saw?
A: I don’t know.
OR
Q: Who else was present at the final meeting you attended confirming the final design of the table saw?
A: I don’t remember.
OR
Q: Who else was present at the final meeting you attended confirming the final design of the table saw?
A: I think Mr. Patterson, the primary engineer.
Unfortunately, this happens all too often to lawyers taking depositions. These kinds of “flimsy answers” demand that the lawyer taking the deposition first listen to the answer and, when the witness and the subject matter of inquiry are critical to the lawsuit, figure out what to do next.
Attorneys often struggle in depositions and at trial to get needed information from witnesses. A witness may present these flimsy answers for a multitude of reasons. A witness’s flimsy answers will become even more problematic when the witness provides such answers as a common response to questions of all kinds or to avoid providing damaging information to the deposing attorney. There are numerous texts, articles, and continuing legal education publications that provide useful information about how to conduct a competent witness examination both in deposition and at trial. The purpose of this article is to distill this information and add tips specifically directed to the witness who provides the flimsy “I don’t know,” “I don’t remember,” or “I think so” answers.
American Journal of Trial Advocacy 