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Business executives can be their lawyer’s worst nightmare in depositions. But how can this be? They are smart and well-educated, thoroughly acquainted with the dynamics of their business, comfortable with public speaking and routinely take tough questions from boards and investors.

This is particularly true of construction executives, who must have the agility and toughness to balance the demands of aggressive construction schedules, financing, safety regulators, workplace issues, suppliers and subcontractors, and all the myriad pieces that must come together once shovels are placed in the ground. Who better to stand up to an opposing attorney?

The problem is that all the command-and-control qualities that make a great construction executive can work against giving effective deposition testimony. If lawyers could sum up all their advice for executives in depositions, it would come down to one word: listen. Listening is the opposite of telling. Executives are very good at telling people what they need to hear. This may work well in running a company, but it often backfires in a deposition.

Make listening a mantra when going into a deposition and focus on these principles.

Don’t over-explain

A witness should not attempt to confer knowledge at a deposition. Supplementary information is best provided in affidavits and other documents, not in the give and take of a live deposition. A witness’ sole responsibility is to provide honest and complete answers to a lawyer’s questions. To do this, a witness should listen to the question, take time to consider it and answer carefully.

Good witnesses also listen to themselves. How does the answer sound? Is it calm, matter of fact and confident? Think of the deposition as an element in a movie or book that will be used by the questioning lawyer to win the case against the witnesses’ company. Consider the context and tone of the answer that should be provided, as an analyst would, not as the opposing lawyer would have the witness do. Consider how the answer will play in a trial if used to impeach the person providing it.

While answers must always be truthful, mentally evaluate the true breadth of the question by its actual words (as opposed to an implication the lawyer is trying to have the witness infer into them). A witness should not try to read suppositions into the question that are not present in the words of the question, and certainly should not respond with emotions evoked from the perceived implications of the way that a question is posed when the words themselves are not provocative. Most often, a deposition is quoted from a typed book, so the inflections in the questioning attorney’s voice are irrelevant in that book. An expectant pause is meaningless in the book. Answer only the words of the question and answer only questions, not silence.

Qualify answers about documents

If a document is involved, and especially if the opposing lawyer has directed the witness to one line or paragraph, don’t assume that it means what it seems to say. Very often in commercial matters, there are “notwithstanding the foregoing” clauses or conditions that must be fulfilled in order to provide the full meaning for a line or paragraph that appears to say something else when read alone.

Unless the witness has mastered a particular document thoroughly, it is always appropriate to start an answer by saying, “unless there are other qualifications or conditions in the document that apply, then ….”

For instance, the document may say “Payment shall be made within seven days of submittal of the invoice.” But it may say elsewhere that certain documentation must be submitted with invoices before they will be paid. The unsuspecting witness who makes an unqualified confirmation of the clause that says invoices will be paid in seven days has fallen into a trap.

If possible, read documents thoroughly before the deposition and review them with supporting lawyers. It’s OK to make people wait during the deposition if the document needs to be read. And while it’s not the tentative style that most executives prefer, a witness should qualify uncertainties in the answer.

Don’t create soundbites for trial

A favorite tactic of cross-examining lawyers is to ask a lot of questions about a specific time frame, and then to ask a question that includes all time. Often, this is to create a soundbite for use in cross-examination at trial regarding some issue where the lawyer has the witness dead to rights.

For instance, a lawyer may probe the witness about losing his temper at a specific time or place. The witness may repeatedly deny losing his temper in the specific situation. Then, the lawyer may ask, “So, your testimony is that you have never lost your temper?” and the witness may say “never.” At trial, the lawyer reads back the last question and the answer and then presents a string of witnesses who testify the executive lost his temper in many situations.

Don’t become fixated in the wrong time frame

Listen to the time frame concerned in every question, especially by reference to dated documents. If a questioning lawyer gets a witness’ brain stuck in a time frame that does not match the questions, she can have a field day creating a false record that is helpful to her client’s cause. It’s very hard to fix with testimony at trial a record that is enshrined in the deposition transcript. A faulty deposition transcript can require long explanations at trial regarding how the witness was confused at deposition about the time frame being discussed, but that the opposite is actually true. If this happens, the witness loses credibility and the case is in jeopardy.

Listen to objections

A witness will have his company’s lawyer present at a deposition and that lawyer often will object to the form or substance of the opposing lawyer’s question. These objections often are made in lawyer-speak. The lawyer may state, “Objection, assumes facts not in the record.” Or, “Objection, as to form.”

An executive may not understand his lawyer’s concerns, but he should at least be on alert that there is danger in answering that particular question. If the questioning lawyer reacts swiftly and affirmatively to the objection made by the witnesses’ lawyer, this may reveal that the questioning lawyer was on the verge of getting some testimony that he believed would be particularly helpful without the witness even recognizing the importance of what the witness was about to say. Likely, this is because there was something imbedded in the question that the witness did not recognize.

In addition, it should be remembered that depositions run on protocols that may be looser than those of a courtroom. Some courts don’t mind a lawyer assisting a witness in order to correct information, while others regard that as interference. The objections may be the only signal the witness receives that a snare has been set.

Avoid rapport

While the lawyers seen on TV dramas tend to be adversarial and mean, real lawyers often find that being friendly and building rapport with an opposing witness is an effective tactic. Remember, though, the opposing lawyer’s only goal is to win the case, not to make a new friend. Witnesses must discipline themselves not to engage in a conversation during testimony with the questioning lawyer. One sure sign of this seduction is when the witness finds himself answering a question before it is finished. Another is feeling that the opposing lawyer has asked a “good question” that provides the opportunity to clarify a matter or to tell him more than he has asked. This is almost always a sign that a trap has been set. Stop and listen to what is really happening.

Respect the process

Litigators may conduct dozens of depositions in a year and thousands during a career. Don’t try to match wits and beat them at a game they play all the time. That’s exactly what they want witnesses to do, and executives are much more likely to be drawn into this lure of gamesmanship. Witnesses who listen calmly to the opposing lawyer as well as to themselves will give truthful, fact-based answers and nothing more.


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