It is common for clients to be disappointed during a deposition in which their attorney, normally a charismatic (or at least obnoxious) personality, appears confused, hesitant or, at times, far too friendly with the opponents. What those clients fail to realize is that such changes in personality are a tactic of extreme value in depositions and intentionally created by the experienced lawyer.

The rationale and methods used are discussed in this article, originally written for young attorneys, but also useful for the client who seeks to understand the often subtle games being played between counsels. Put simply, a lawyer who is good at depositions will appear to be a good natured, not very bright and a not very prepared mediocrity who is, above all, not threatening to the witness. Why? Read on.


The Odd Forum of Depositions:

During the mid seventies I had the opportunity to watch one of the most famous of the old style war horses of litigation in San Francisco conduct a series of depositions in which prominent business men accused of fraud were being cross examined by him day after day. We represented the Trust of a family which had lost millions to these fast talkers and I had seen my mentor strut and shout in court during various motions, bellowing at the defendants sitting silent at their counsel’s table, while the judge enjoyed the spectacle.

But during these depositions he was a different attorney. His voice was never raised, he gently inquired of these defendants, shuffling papers scattered before him on his desk, often appearing confused, taking the sarcastic responses of the increasingly confident witnesses without comment, acting a bit intimidated as the days dragged along. By the third day of the depositions the now arrogant witnesses were giving him long lectures as to how he had misconstrued the case and how the facts could only be understood by his careful attention to their long and involved explanations.

And after the witnesses left on the evening of the third day I was called into his office and, to my shock, saw him literally dancing a little jig. “I got them, I got them, I got them…” he sang as his by no means small paunch jiggled as he bounced up and down.

Seeing my confusion he settled back in his chair and gave me the single most important lesson for depositions I was ever to learn: “Son, it’s not what I say or how I look in depositions: it’s what they say and whatever they say that helps their case is gone forever and whatever they say that hurts their case we ram down their throats. In those three days they lectured me for twenty two hours on how our case was garbage…and made one mistake, one tiny admission that lasted for two minutes in the afternoon of the last day…and guess what? Those two minutes destroyed them.”

He was right.

Before a jury or judge, with every word being weighed by the trier of fact, each question and each answer is of vital import…but in a deposition in which the judge or jury only sees those answers that a lawyer can place into evidence for very limited purposes, almost all of the questions and answers are normally consigned to oblivion and the witness who rattles on proving the case is powerful accomplishes nothing…but any error in testimony, any weakness or admission CAN be admitted into evidence by the lawyer. Thus, if one testifies magnificently in a deposition for six hours and makes a mistake for three minutes…only the three minutes will be read by the lawyer before the judge or jury.

It is this aspect of a deposition that alters so dramatically the methodology of counsel in depositions and that is the scope of this article.


The Basics of Depositions

The reader should first read the retainer article on Depositions in American Litigation which discusses the ten most important rules for the witness in a deposition to consider before attending his or her deposition. This article, instead, gives insight as to what your lawyer is doing in terms of tactics.



The underlying truth about evidence developed at depositions is that most of it can never be entered into evidence at trial. While the rules of evidence are complicated, the underlying theme is that one can not use evidence that the other side is not allowed to question and cross examine in court. This is the rule of “hearsay” and to understand the limits of depositions, one must understand the essential elements of hearsay.

Put simply, hearsay is any evidence deriving from an out of court source that the opposing party cannot cross examine because…the witness who saw the evidence is not in the court. Thus, if I testify that X told me the house was painted red, you would need to be able to cross examine X to question whether the house is really red…but since X is not there, only me, and since I am only repeating what X told me, you are not able to cross examine the source of the evidence…and the evidence would be barred since it is hearsay. The test is this: If the cross examiner does not have in court the person who actually “saw” or “knows” the evidence being introduced (thus can be cross examined) the evidence is barred.

Depositions are, by definition, “hearsay” since they are out of court statements. The court, if one tries to put into evidence at trial the depositions, will usually tell the lawyer simply to put the person on the stand to testify instead and to be cross examined.

But the major exception to the hearsay rule which allows hearsay evidence into the trial is an “admission.” The courts have held that if a party makes a statement that hurts his or her case, then that admission can be introduced into evidence because it is more likely than not to be true since people would not normally make admissions.

AND if the witness on the stand changes his or her testimony from that in the deposition, the lawyer can “impeach” the witness by asking why the testimony changed and must, of course, introduce the evidence from the deposition to impeach the witness.


And what is the result of that simple fact for the lawyer taking the deposition? It means that if the witness says a thousand things that help the witnesses’ case and one thing that hurts the case…you can use that one thing and the thousand things do not matter at all since they will not be introduced into evidence from the deposition.

And from those facts flow the rules for the lawyer in a deposition discussed below:






Since the words of the witness which hurt his or her case must derive from the witness, the first object of the attorney must be to get the witness to “open up.” One does not care how much the witness chatters on so long as the witness, hopefully feeling comfortable, keeps talking. Remember: if one sentence out of a hundred is useful, that is a victory.

Most witnesses can not resist lecturing the attorney, justifying their case, attacking the other party, etc, etc. and the job of the attorney is to let them do precisely that, hopefully setting various traps that will result in the witness, as he or she talks on, making an error that can later be used in court.

Perhaps examples would be useful.


1. The Trap:


In one case we sought to prove that a witness had received a house as a “gift” from a deceased Trustee who had actually stolen the house from the Trust Estate. The Trustee had died twenty years before but if we could show that the house was transferred to the witness (who I will call “Ike”) as a gift and not sold to him, then he was not a “bona fide purchaser” and the Trust could insist he transfer it back to the Trust.

Realizing that evidence for this old transfer would have to come from Ike since all the other witnesses were dead, we carefully filed suit against him on grounds very different from the above: we claimed he had actually purchased the property for too little money and had intimidated the deceased Trustee into selling it to him below cost. The technical term was that he had used “undue influence.” We decided that if, in defending the claim that he had purchased it cheaply that he gave us the evidence that it was, instead a gift, we would amend our case with that evidence in hand and we could win. We did not mention that the Trustee had stolen the house from the Trust in the first place, only that she had sold it to him at too low a price.

During the deposition Ike angrily testified that not only had he not forced her to sell him the house, but that she had loved him and was the “boss” in the relationship. He was adamant that he would never have to buy anything from her since she “took care of him.” He was so anxious to prove that it was her idea all along that he even interrupted the lawyer asking questions to describe all the gifts that she gave him without him asking, including the house:


Q: So, you claim that the fact that she declared no income from the sale was not due to the low price…


A: (Interrupting) There was no sale, I told you and no price at all…


Q: I don’t understand. What do you mean…?


A: (Interrupting again) You got the question all wrong. You don’t know what happened. You people are just confused and trying to make up something that did not happen…She gave it to me because she loved me, I didn’t have to buy it or ask.


Q: Did you file a gift tax return?


A: I don’t even know what that is. I tell you she gave it to me. We were close, you see. She wouldn’t ever sell me anything…or vise versa. She cared for me and so did I care for her (sic.)

It was a present to me and she didn’t report income from the sale because there was no sale no matter what you people think….


A month later we amended the complaint to allege he was not a bona fide purchaser. Three months later his lawyer advised him to transfer the house back to the Trust.


(Note that a well prepared witness would have simply indicated that it was so long ago that he really did not remember much about how it happened, he thinks he may have paid something for it but can’t recall and was sure it was part purchase and part gift…the opposing counsel failed to prepare his own client adequately for the real issues at bar by adequately investigating all possible causes of action.)

The attorney tactic that worked was the lawyer let the witness go on, let him interrupt, acted confused and in need of “guidance" from the witness…and therefore won. The lawyer opened up the witness by acting confused and relatively foolish and by letting the witness angrily lecture the attorney on what “really happened.”


2. The Lecture


Another example: here, we were trying to prove that the witness was a sophisticated business man and contractor who could not have been defrauded by our client despite the fact that our client had sold him a home that had foundation problems.

The key issue was whether the witness had enough experience in construction so that the cracks would have put him on notice that the foundations were defective and he would not have relied on what our client stated. The lawyer again decided the best way to do that was to make the witness think we were trying to prove our client did not know there was any problem…and the witness, in proving to us the client must have known, would make it obvious the WITNESS must have known. Again, the witness should have answered as briefly as possible, merely stating that he does not know what our client knew…but could not resist lecturing the attorney and, again, the attorney used an old tactic…inviting the witness to attack our client.

Thus the lawyer kept pushing the witness on the issue of what our client must have known…when, in reality, the lawyer was simply trying to get the witness to state that the defect was obvious. The mild and apparently uneducated questions of the lawyer invited the witness to lecture the lawyer on construction issues…thus prove his level of expertise and to attack our client as having the knowledge since it was obvious. The record below was the culmination of four hours of questioning:


Q: You hired numerous experts to assist you in checking over this property, correct?


A: I had advice.


Q: You had several experts…?


A: When I needed them, yes.


Q: And did you think you would need them for this real estate purchase?


A: I relied on your client to be honest.


Q: Honest? You mean you relied on my client to advise you on the state of the property, the needed repairs?


A: Not advice. I didn’t want his advice, just his honesty and integrity.


Q: Do you know if my client had experience in construction?


A: No, and I doubt if he had experience in being honest, either…


Q: Is my client an expert in foundations and structural engineering?


A: You don’t have to be an expert in foundations to know that something is wrong. He could easily see that.


Q: See what?


A: The cracks. The settling.


Q: But you don’t think, then, that he would need particular expertise to understand how dangerous those cracks could be? Isn’t it true that there are engineers who spend years developing that expertise?


A: There are engineers, yes, but they are not always needed. An engineer would not be needed here.


Q: Foundation engineering is quite complex, is it not?


A: No more complex than being a contractor or developer, believe me. And here there was nothing that required much complexity.


Q: You don’t think my client would have to be an engineer to know this was a problem?


A: No.


Q: But not all the cracks here are visible, are they?


A: No, but enough are. They are not subtle. There were enough.


Q: Enough for what?


A: (Impatient.) Enough to tell him that there is a problem and a problem that could be serious and that he should disclose that to a buyer.


Q: But don’t you think only an expert would understand how serious this could be?


A: I already said not. People cannot always make the excuse that an expert is needed. People have to be responsible for what they do and what they say, that’s the problem you attorneys have made, no one is responsible for their actions anymore.


(Attorney for the deponent) Stop volunteering Jim, just answer the question. Witness nods.)


Q: Don’t you think only an expert would know how serious it would be?


A: I think he knew.


Q: But he is not an expert.


A: Look, you see the cracks around the door and the left wall, you know. He was on notice. He stepped over the cracks every day.


Q: Don’t you agree that only an expert in construction could really know how important these cracks could be?


A: Look, all buildings have cracks, but these are not just small cracks. They have space between them and they go from the bearing struts to the sidewalk and down the hill. It’s like a big sign saying, “Problem, problem.”


Q: And even a CPA would know that? Even a lawyer?


A: (Laughing.) Yeah, even you would figure that out. Then you could sue.


Q: But were those cracks recent?


A: Obviously so. Again, one can determine the level of exigency by the characteristics of the cracks. Here there was nothing growing in them, the crack was clean and not weathered, moving from bearing struts and anyone with any experience in home ownership at all could determine it was an immediate problem and even a CPA could tell there were big problems. He knew.


Q: Did you?


A.: No, I relied on him.


Q: You had inspected the house?


A: (Pause) Yes.


Q: Four times?


A: Yes. But twice at night.


Q: Sir, the cracks were obvious so that anyone could tell there was a problem. You just testified that was so, correct?


A: During the day.


Q: And you inspected twice during the day?


A: (Pause.) Yes.


Q: And you are a licensed contractor?


A: Yes but he did not advise me as to the cracks.


Q: You neglected to see the cracks during your visits?


A: I didn’t neglect anything. I saw them but was also checking everything else. You have to inspect the entire house and we were limited in time.


Q: And part of your inspection was the foundation?


A: Among many other things…


Q: And you saw these obvious problems?


A: I relied on him to tell me the truth about the problems.


Q: No more questions…


In both cases the attorney opened up the witness by asking open ended questions, letting the witness go on and on explaining the position, by letting the witness be the “expert” explaining the situation to the rather dense attorney.

A good attorney will do whatever it takes to get a witness talking. Questions such as “why,” which are disastrous to ask at trial are common in depositions, as are open ended questions such as, “Why did you do that,” “How come you felt like that,” “That must have outraged you,” etc, etc.

If the open ended approach does not work, nor the stumbling not very bright attorney approach, a good attorney will often see if making the witness angry or annoyed might get him or her talking, often asking questions that are slightly sarcastic or in a tone seeking to upset.

But a far more effective method is to become quite friendly with the witness, nod as the witness explains the facts, thank the witness over and over, and, at times, even gently mock your own client or the documents produced by your own client. An unwary witness will warm to that welcoming approach, surprised that the lawyer on the other side is so “reasonable,” and, relieved that no “tough questions” are asked, chatter away. One expert witness once remarked to this writer that he knew he was failing in his deposition if the lawyer was becoming his friend. “He should be rather annoyed with me and snappish or I have been too nice with him!”

Remember: the task of the lawyer is to get the witness talking: the more the better. Whatever it takes, so long as the Code of Ethics is adhered to.

And NEVER impeach the witness and humiliate him or her in a deposition. The moment a trap is closed obviously the witness realizes the mistake and clams up. If a lawyer gets a useful admission, the next step is to change the subject quickly and keep that testimony for later use at trial or during settlement discussions.

That is why a bad witness will leave a deposition thinking he or she has done a great job…since a good attorney will not react as the admissions go into the record but will continue to act pleasant, perhaps a bit foolish, confused…and quickly change the subject.

Save the brilliant impeachment for trial when the jury is looking…not for a deposition in which the witness will understand the error and have months or years to prepare to explain it away before trial.



Young attorneys, with their clients in the room, often try to impress clients by becoming churlish, sarcastic or combative with opposing counsel. While some sparring is often necessary, especially to show opposing counsel that one is not going to be pushed around, the good attorney seeks to avoid arguments with counsel since it wastes time, seldom helps the deposition, but above all puts the witness on guard and stops them from talking.

A witness, seeing the verbal sparring, will conclude that he or she is in a combative and dangerous environment and will hesitate to chatter away as the deposing attorney would like.

While perhaps emotionally satisfying to the attorney to “win” the argument with the defending attorney, in reality the attorney should be ready to “lose” the argument or appear “soft” so that the witness is put off guard…so long as the questions can get asked and the witness, relieved that his or her attorney out maneuvered the attorney asking questions, begins to relax and speak without hesitation.

Often this writer will, upon objection from a lawyer as to the form of the question, ask the other lawyer how he or she would like the question phrased. If areas of hot dispute are unavoidable, leave them for the end of the deposition after the witness has testified openly since it is likely that once the hot arguments begin the witness will no longer testify easily.

Assuming an attorney remains hostile throughout the deposition; seek to maintain constant eye contact with the witness so that a connection is maintained that “ousts” the other counsel from the communication. Speed up the questions slightly so that the witness does not give his lawyer a chance to object or coach.

A good technique to create a sense of security for both opposing counsel and the witness is to warn the witness about the need to answer questions only if they are fully understood, to feel free to consult his own lawyer as much as he wishes, to take as many breaks as he feels necessary, to “ignore” the squabbling of attorneys since “That is what we often do,” with a smile. One excellent attorney I knew began every deposition with a warning that he often asked confusing questions and when that happens “asks your lawyer to tell me to straighten up and ask decent questions.” The laughter that followed that would usually open the witness up for hours.

Leave your ego at the door. Your job is to get the witness to talk and unless the environment seems relatively safe (or unless you can get the witness angry or lecturing) your fights with opposing counsel are counterproductive.



At the end of the deposition you have a tool…a booklet with testimony under oath you can use to impeach. No judge or jury saw your brilliant questions and no one but your client and opposing party or witnesses saw your brilliant repartee’.

Your client already should know what you intend to do with the case and your opponents will not be convinced by your speeches or impeachment.

Save it for trial when the judge and the jury can see it. If you get a brilliant admission that can win the case for you, show no reaction. Make sure the statement is in the record and move on to the next topic before your opponents have figured out how to correct the admission on the record.



If you have some spectacular area of cross examination to spring on the opponent do not use it right away. Get the witness to relax, get the lawyer to go half asleep or staring out the window, and if you can plan it correctly, begin your cross examination in that area after lunch and after as many hours of friendly and easy questioning as you can.

Slip into the area without making any particular note of it. If possible, act as if it was a thought that occurred to you predicated on any answer just received from the witness…as if you were merely “wrapping up” a matter that has just occurred to you.

A great attorney was famous for his, “Oh, yes, just one more thing before we end…” series of devastating questions in depositions, pulling back the witness literally as the deposition was ending and the lawyer on the other side was packing up his briefcase.

Another lawyer would wade through piles of papers on his desk, acting the fool, trying to find the document while the witness would look at him in amused contempt…though the attorney was fully aware of the document he intended to use and was simply making the witness feel safe and at ease. And talkative.



When one catches a witness in a clear lie and has the document to prove it, it can be useful to let the testimony go in and then immediately impeach bringing out the document and shattering the witness under oath. But it may also be useful not to reveal the existence of the document and save its effect for impeachment literally before the judge and jury.

Much depends on whether the case is likely to settle before trial and whether the use of the document in the deposition may result in a quick settlement the client wishes. This tactic should be carefully considered before the deposition.

Nowadays, with over ninety percent of cases settling, most impeachment does occur in deposition but note that this gives the opponent’s months if not years to prepare explanations for the judge and jury as to how the document came to be. Yes, you have the transcript to impeach with and yes, it is quite useful; but remembers, there is nothing like impeachment before a jury to win the case.



If you become angry or emotional you lose control of the deposition. Remember, it does not matter what is said by anyone but the witness since only the testimony goes into the record. It does not matter who wins what arguments in the deposition or who gets the best insult in.

Your task is to remain fully in control, to show emotion only if it opens the witness up to speak more, and if you find yourself becoming angry or upset, take a break and regain the mental calmness required.

Lawyers are hired to think, not react. The client has the luxury of letting emotions become involved. You do not. And, remember, often an opposing counsel will act angry or upset or obnoxious simply to throw you off and ruin your ability to keep the witness relaxed and talking. This writer intentionally mocked an excellent attorney who was achieving remarkable admissions from the witness simply to enrage the lawyer and start him off on a series of speeches that intimidated the client and stopped the testimony quite quickly.



While preparation is the key to a successful deposition, and while the good attorney will spend four hours or preparation for every half hour of questions, it is axiomatic that if the witness is freely testifying that he or she will say something that the attorney does not expect or reveal a witness or fact that is a surprise.

A good attorney will follow up any lead that opens without showing either surprise or delight and will follow it no matter how long it takes. This writer once spent two days in what was supposed to be a two hour deposition because the witness produced a surprise document that no one had expected to appear.

Look at the witness. Watch the expressions and the silent communication between lawyer and client. See what concerns the witness, see what areas he or she avoids and follow them up, though do it without intimidation if you can. And if an answer comes in that surprises you or opens up new areas of inquiry…follow it through to the end. Depositions have their own dynamics and as you hopefully establish a relationship of communication with the witness, you may obtain leads that are more important than your entire planned line of questioning.



While some depositions are hostile formal affairs (especially if the defending counsel is aware of the tactics above) your goal should be to allow your opponents to be so relaxed and open that they have no fear of you if possible. And if you are not interested in forcing a settlement, then it is common for the witness to leave without the slightest knowledge that his or her testimony may have been destructive to their case. They will discover the truth only at trial or when you quote their testimony in the deposition in a later settlement demand.

Other times, when seeking settlement, the attorney will impeach and impeach hard to demonstrate to the opposing counsel that their case is weak and will have to be settled. But such impeachment will tend to close down the witness so should be saved for the end. The one exception is creating such defensiveness or anger in an arrogant witness that they will seek to prove their case by explaining ad nauseum during the deposition.

That same attorney mentioned at the beginning of this article was famous for his ironic, “You don’t say?..” as he shuffled his papers which would often result in a emotional witness bridling and going on at length to justify a previous answer.

Above all, remember that the deposition’s task is to get evidence, not to prove manhood or demonstrate trial skills.



Each attorney must adjust deposition style to his or her own personality but each attorney must also realize that a strong personality is fine in court but often counter productive in a deposition. Be strong enough to neutralize the opposing counsel…but quiet enough to keep the witness talking. That is the fine balance needed until the impeachment at trial begins.

For those depositions in which intimidation may be used to impose settlement before trial, plan such efforts carefully to occur after you have obtained the other testimony that you seek since otherwise you will face a hostile and possibly prepared witness.

And if you are the “client” reading this, understand that there is method to the remarkable gentleness of your attorney in most depositions. And remember, when you are deposed, that a good lawyer on the other side will be trying the same tactics and if he or she is friendly…worry.

A favorite client once remarked to me that he understands now that a “docile idiot who says nothing”, is the ideal witness in a deposition and a “jovial buffoon lawyer,” the usual persona used by the clever attorney to put the witness at ease. “It’s like having Laurel and Hardy in the same room with Hardy cross examining Laurel. Such nonsense.

He is right…but it works.