By Sach Oliver
You don’t have to spend much time around me before you’ll know how much I value the truth, especially when it comes to taking depositions. In my view, an attorney who isn’t looking for the truth is in the wrong business.
Of course, not every defense witness wants to tell the truth and some actively avoid it. When handled correctly, however, those witnesses provide some of the most powerful deposition testimony for your client’s case.
Corporate reps commonly claim they don’t know the truth for one of two reasons. One, they don’t know because they were instructed not to know by their defense team. Two, they really don’t know.
If you’ve done your research, you typically can figure out if a corporate rep is likely to evade your questions by claiming they don’t know answers that they know or should know.
With these witnesses, we use an “ego up” strategy to lay a foundation for their evasiveness. Early in the deposition, we ask simple questions that establish the witness as a knowledgeable expert on the topics we plan to discuss. Then when we ask questions that a knowledgeable expert should know, it’s harder for them to run from the answers. They either give us the answer or destroy their credibility.
If they genuinely don’t know the answers, that’s the time to establish that in binding testimony the corporation did not know something any reasonable person (like a juror member) would expect them to know.
This is a damaging admission for the corporation, and it happens more often than you might think. I’ve deposed corporate representatives who were vice presidents and who didn’t know the names of the plaintiffs or who, in wrongful death suits, couldn’t name the deceased. All you need is a few videos with those admissions to sink the corporation’s ship.
Part of our approach with witnesses who avoid the truth is to create a clip that shows they had every opportunity to do the right thing (to tell the truth) and chose not to do it.
We give them three rock-solid opportunities to answer the question truthfully. When they fail to take advantage of those opportunities, we don’t have to make a big deal about it. We can simply move on. If they evade the truth, attempt to confuse the truth, or won’t answer an obvious question, the video clip will make that clear and witness is toast.
