I am sure everyone has an excellent instruction about our Golden Rule 5 for depositions – not to volunteer information – that is to say, shut up. It’s not always an easy instruction for a client to follow. It’s a little like telling your kid not to drop the ball. Here’s an introduction (or some version) I may give to a first-time deponent:
“As a witness, being deposed is frustrating because you can’t win. As tempting as it may be, your goal is not to outsmart the opposing lawyer. Your goal is to avoid losing. In football language it’s to avoid turnovers – no fumbles, no interceptions. You are playing defense in a deposition. In trial you can go on the offense and tell your story. But not in a deposition.
You will be courteous and respectful and you will answer the questions and always tell the truth. After that you will please Shut Up! There was a World War 2 slogan ‘Loose lips sink ships!’ Well, it applies to depositions.
If you volunteer information, you may sink the case. If you are kind and helpful to the examiner in the mistaken belief that it will shorten the deposition, you will be in for a rude surprise. You will be staying a lot longer.
Now, it’s not easy to shut up. After all, we are conditioned by social rules of everyday conversation. We are taught as little kids to be amiable and responsive and helpful. It’s not natural to keep a tight lid on our responses – it goes against our instincts. If we’re asked a question, we are conditioned to respond politely and helpfully. Otherwise, we may look like jerks.
Do you remember playing the card game Go Fish as a kid? The operative rule in that game is not to volunteer. If the other player asks if you have any Jacks, you don’t volunteer, “No, but I have some great looking Kings!’ You tell him to ‘Go Fish.’ You should do the same in your deposition.”
Alex Craigie wrote an excellent post on this topic. He used the metaphor of being in a dark room:
“When preparing such a witness, I begin by asking them to imagine that they are in a completely dark room, groping by hand to find familiar objects – a chair, a picture frame, a light switch! This, I tell the witness, is exactly what the examining lawyer feels like, and he is asking you to take his hand and guide him through the dark to the light switch. The all too human temptation, I warn the witness, is to do whatever you can to guide the helpless lawyer… the witness incorrectly perceives that, by helping the examining lawyer, she will more quickly bring the deposition to an end, which is what she wants more than anything.
The problem is that helping the examining lawyer will actually have the opposite effect. Every morsel of information the witness offers will give the examiner one more possible avenue to explore, one more path to go down. Instead of shortening the deposition, the additional information makes it go longer, and increases the likelihood that something damaging will make it onto a transcript. I teach that even the most experienced witnesses fall prey to this fallacy.”
Practice Tip: Tell your witness to Go Fishing. Then drive the point home with Alex Craigie’s metaphor.