Most practitioners use some form of the Golden Rules to prepare a witness for deposition. There are typically ten to fifteen rules. Some focus on five or six. The Justice Department in Pennsylvania offers twenty-two. You know them or some version of them:
- Tell the truth
- Listen to the question before you answer
- Only answer the question asked
- Pause a few seconds before you answer
- Don’t volunteer information
- Don’t guess or speculate if you’re not sure
- It’s okay to say “I don’t know”
- You don’t have to answer “yes” or “no” even though the lawyer says so
- Don’t fill silence with comments or elaborations
- Don’t argue with opposing counsel
- Don’t look to your lawyer for help
- It’s okay to have discussed your testimony with your lawyer
These rules are sensible. But will an inexperienced witness really learn just by reading or hearing them? It’s a long list. It reminds me of the time when I took scuba-diving lessons with my brother-in-law in Mexico. We were sitting on the beach listening to a pony-tailed instructor recite the ten absolutely essential rules of scuba-diving. By the time he got to Rule #7 I had forgotten Rule #3. By the end I had forgotten two of his life-critical rules.
We then moved into six feet of water with masks and tanks. Underwater he continued the instruction – basically reviewing his rules – but with hand gestures only. I had no problem understanding or remembering them. He taught well with his hands but poorly with his mouth. The lesson for me was even though we may give our witnesses clear instructions, it doesn’t mean they’ve learned them or remembered them. As George Bernard Shaw noted, “The single biggest problem in communication is the illusion that it has taken place.”
There’s another issue with these deposition rules. Many of them have qualifiers and exceptions. Some are simply wrong when the context changes. The rule about pausing for a few seconds before answering is fine in an oral deposition since the pause doesn’t show up in the transcript. In a videodeposition a four or five second pause may look odd or staged, if it’s shown at trial.
In many states, such as Texas, videodepositions are commonplace. You do not want your witness to be seen pausing four or five seconds before every answer in a videodeposition. Some jurors may think a truthful answer is a quick answer.
Practice Tip: You can tell a first-time witness about all of these rules but that doesn’t mean she has truly learned them. Test her periodically to see if she really understands.