Depositions are vital to the legal process, especially in civil litigation and criminal cases. They allow attorneys to gather sworn testimony from witnesses before a trial begins. While the process is straightforward, lawyers often use various techniques to gain an advantage for their clients. Understanding these tricks can help both parties prepare for depositions, avoid traps, and improve their chances of success. This article will delve into the tricks lawyers use in depositions and provide practical tips on handling them.
What is a Deposition?
A deposition is a formal, sworn statement given by a witness or party to a lawsuit during the discovery phase of legal proceedings. In a deposition, the witness is questioned by attorneys representing both sides of the case, and their responses are recorded, often by a stenographer or video. Depositions can be used to gather evidence, assess the reliability of a witness’s testimony, and determine the strength of the opposing side’s case. While depositions are not held in front of a judge or jury, the testimony provided can significantly impact the case outcome. Sometimes, it may even be used as evidence in court if the witness cannot appear to testify at trial.
The deposition process is designed to allow both sides to gather as much information as possible before going to trial. This is why depositions are often seen as a battleground for attorneys, each attempting to uncover helpful details while protecting their client from damaging information. Lawyers use various tricks and strategies to gain the upper hand in this critical part of the case.
Leading Questions: Gaining Control Over Testimony
Leading questions are one of the most effective tricks lawyers use during depositions. These questions suggest the answer within the question itself. A leading question typically frames a response in a way that confirms the lawyer’s version of events. For example, a lawyer may ask, “You were at the scene of the accident, weren’t you?” instead of simply asking, “Where were you when the accident occurred?”
This tactic is valuable because it allows the lawyer to control the direction of the conversation, leading the witness toward a response that fits the narrative they are trying to establish. By framing the question to make the answer obvious, the lawyer increases the likelihood of getting a favorable response. The lawyer may also use leading questions to lock the witness into a particular version of events or prevent them from deviating from the facts that benefit the case.
Leading questions are beneficial when a lawyer is trying to solidify specific facts. They can also subtly push the witness into agreeing with statements that may help the lawyer’s position during the trial. While leading questions are not allowed in direct examination during trial, they are permitted during depositions.
Tip: How to Handle Leading Questions
Being cautious is essential if you are asked leading questions during a deposition. Stick to the facts and don’t feel pressured to agree with statements that aren’t entirely accurate. If a question feels biased or loaded, asking for clarification or even objecting if your lawyer feels the question is inappropriate is fine. Above all, take your time and ensure your answers are truthful and precise.
Mirroring: Building Rapport to Get Information
Mirroring is a psychological tactic that lawyers often use to build rapport with a witness. It involves subtly mimicking the witness’s body language, tone of voice, or even repeating parts of their previous answers. The idea is that by creating a sense of familiarity and comfort, the lawyer makes the witness feel more at ease, thus encouraging them to share more information.
Mirroring works because humans tend to trust those who resemble them somehow. When a lawyer mirrors a witness’s actions or speech patterns, it subconsciously fosters a connection. As a result, the witness may become more willing to provide candid responses, potentially revealing details they might not have shared otherwise. This can be particularly useful for lawyers seeking a witness to open up or offer more detailed testimony.
Though mirroring can be subtle, it is often effective. By appearing empathetic and engaged, the lawyer can interact positively with the witness. This tactic works particularly well when a witness feels nervous or uncertain. The lawyer’s mirroring behavior can ease the witness’s anxiety, leading to a more cooperative deposition.
Tip: Recognizing Mirroring
If you’re undergoing a deposition, be mindful of this technique. Lawyers use it to encourage witnesses to divulge more information. Stay focused on the specific questions, and remain calm and composed. If you feel uncomfortable, it’s essential to take a moment and refocus, making sure to answer only what is necessary without providing unnecessary detail.
Silence: Using Pauses to Get Information
Silence is a potent tool in depositions, though it may not be immediately apparent. After a witness answers, a lawyer may remain silent momentarily, creating an uncomfortable pause. The lawyer does this to pressure the witness to continue speaking, often leading them to offer more details or provide clarifications.
This technique works because of the natural discomfort most people feel during silence. Witnesses may need to fill the void by offering more information, even when not asked. Lawyers may exploit this to get the witness to say something they hadn’t intended to reveal or to trap them into contradicting previous statements.
In many cases, this tactic is more about psychological pressure than the specifics of the question. The silence creates tension, and the witness may try to ease it by speaking more freely or offering additional facts, which could be helpful or damaging to their case.
Tip: Handling Silence
If you’re being deposed, recognize when the lawyer uses silence as a tool. Don’t feel compelled to fill every silence with more words. Take your time and think carefully before providing additional information. If you’re unsure, staying quiet and asking your attorney for a break or clarification is okay.
Objections: Redirecting the Conversation
During depositions, attorneys often use objections to control the flow of information. Although objections are typically used in court to challenge evidence or testimony, they can also be used strategically during depositions to steer the conversation or limit the witness’s responses. Objections can be made to questions based on relevance, leading, hearsay, or confusion.
While objections in depositions do not carry the same legal weight as in court, they are essential in shaping the transcript. By objecting to a question, the lawyer signals to the witness that certain lines of questioning are problematic, which can help protect the client’s interests. Objections also allow the lawyer to prevent potentially damaging testimony from being fully explored.
Objections are a common tactic in depositions, especially when the questioning attorney feels that a particular line of questioning could damage their case. Lawyers use objections to protect their clients and prevent the opposing party from gathering damaging information.
Tip: Dealing with Objections
When an objection is raised, it’s essential to remain calm. Your attorney can address most objections, and waiting for their guidance is best. If you’re unsure about a question, ask your lawyer to explain it before providing an answer. Sometimes, the questioning lawyer may rephrase the question to avoid the objection.
The “Set-Up” Question: Laying a Trap
A “set-up” question is designed to corner the witness or trick them into making a damaging admission. Lawyers often use these questions when they anticipate that a witness will give contradictory testimony or when they want to establish a particular narrative. These questions may appear harmless initially but are carefully crafted to lead the witness into a situation where their answer can be used against them later.
For example, a lawyer may ask, “You’ve said that you didn’t see the accident, but you were standing just a few feet away, weren’t you?” The subtle suggestion that the witness was close to the incident can lead them to provide an answer that contradicts their previous statement, making them appear unreliable.
The key to a set-up question is that it leads the witness to answer in a way that fits the lawyer’s desired narrative. It’s designed to exploit any inconsistencies or weaknesses in the witness’s testimony.
Tip: Recognizing Set-Up Questions
If you’re being deposed, it’s important to recognize when a question leads you into a trap. Before answering, consider whether the question is based on an assumption or if it’s pushing you to agree with something that may not be entirely true. If you’re unsure, ask your lawyer for clarification.
Repetition: Reinforcing a Message
Repetition is one of the most effective tools in a lawyer’s arsenal during depositions. By repeatedly asking the same question or emphasizing certain information, lawyers can reinforce a specific message in the witness’s mind. This repetition helps to solidify key facts and makes it more likely that the witness will give consistent answers throughout the deposition.
Repetition also highlights particular points, making them stand out in the deposition transcript. When a lawyer repeats a question or statement, it often signals to the witness that the information is essential and needs to be addressed with particular care. This tactic can also make the witness more likely to offer a response that confirms the lawyer’s desired narrative.
Tip: Dealing with Repetition
If you find yourself being asked the same question multiple times, take a moment to think carefully before answering. If the lawyer is repeating a question, consider why they might be doing so. Don’t feel pressured to change your answer or to add unnecessary details.
Time Pressure: Rushing the Witness
Time pressure is another subtle trick lawyers use during depositions. The lawyer can create a sense of urgency by implying that time is running out or that the deposition is taking longer than expected. This pressure often causes the witness to rush their answers, which can lead to mistakes or incomplete responses.
Lawyers might also use time pressure to catch the witness off guard or push them to respond quickly without fully considering the question. The goal is to cause the witness to act impulsively and possibly make errors that can be used to weaken their testimony.
Tip: Handling Time Pressure
If you feel rushed during a deposition, it’s essential to take a moment to gather your thoughts before answering. Don’t feel obligated to respond quickly if you’re unsure about something. You can always ask for a short break to regroup if necessary.
Avoiding Yes or No Answers: Pushing for Details
Finally, lawyers may avoid asking direct yes or no questions, instead pushing for more detailed responses. This strategy is designed to elicit a fuller answer, giving the lawyer more material to work with. When a lawyer asks open-ended questions, they encourage the witness to elaborate, sometimes leading to contradictions or admissions they hadn’t intended to make.
By pushing for detailed responses, the lawyer increases the likelihood of gathering helpful information or obtaining an answer that can be used later in the case.
Tip: Giving Detailed Answers
When answering open-ended questions, stick to the facts and avoid offering speculative or unnecessary information. Keep your responses clear, concise, and accurate to minimize the risk of inadvertently revealing something damaging.
Creating Uncertainty: Eliciting Contradictions
One of the more subtle techniques lawyers use in depositions is creating uncertainty in the witness’s testimony. This tactic involves asking questions that may appear simple but are designed to lead the witness to contradict themselves or provide unclear answers. By introducing ambiguity into the witness’s responses, the lawyer can weaken their credibility.
For example, a lawyer might ask a witness, “You were sure it was 3 p.m. when you saw the defendant at the scene, correct?” Then, after the witness confirms the time, the lawyer might ask, “But were you certain it was 3 p.m.?” The shift from a direct question to a more questioning tone could make the witness doubt their recollection, creating confusion and potentially leading to a contradiction.
This approach is beneficial when the lawyer wants to discredit a witness or cast doubt on the accuracy of their memory. Lawyers will often repeat similar questions in different ways to confuse the witness and make their testimony seem unreliable.
Tip: Dealing with Uncertainty in Your Testimony
If you’re being asked repetitive or contradictory questions, be careful not to second-guess yourself. Stick to your original recollection of events and clarify your answers if needed. If you’re unsure about something, it’s okay to admit that you don’t remember, as providing inaccurate information can harm your credibility.
Using Documents to Control the Narrative
In many depositions, lawyers may introduce documents to the conversation, often using them to control the narrative and challenge the witness’s testimony. For instance, the lawyer may ask the witness if they remember a specific document, such as an email, contract, or report, and then use that document to challenge the witness’s statements.
Documents are powerful tools because they provide tangible evidence that can directly contradict the witness’s testimony. Lawyers often use documents to reinforce their client’s story or catch a witness lying. By confronting a witness with a document they haven’t seen or don’t remember, the lawyer can force the witness to explain discrepancies, which may harm their credibility.
This tactic also works when a lawyer anticipates that a witness will attempt to downplay or alter the details of a situation. Introducing documents can prevent the witness from evading the truth, as the paper trail offers concrete evidence of what happened.
Tip: How to Handle Documents in a Deposition
If you’re presented with a document during your deposition, take the time to thoroughly review it before responding. If you don’t remember the document or if you don’t understand it, don’t be afraid to ask for clarification. Never feel pressured to agree with something you don’t recall or don’t believe is accurate.
Other Tricks Lawyers Use in Depositions
| Trick | Description |
| Assumptions in Questions | Lawyers may include assumptions in their questions to force a witness to confirm or deny a point, which can lead to contradictions or admissions. |
| Hypothetical Scenarios | By presenting hypothetical scenarios, lawyers can push the witness into providing answers that help the lawyer’s case, even if those scenarios are not real. |
| Over-Exaggeration | Lawyers might exaggerate the importance or impact of specific details to make them seem more significant than they are. |
| Appealing to Sympathy | In some cases, lawyers will attempt to appeal to a witness’s emotions, using sympathetic questions to soften the witness’s stance or lead them to more favorable answers. |
| Prepping Witnesses for Favorable Answers | Some lawyers will prepare witnesses ahead of time by guiding them on how to answer specific questions, steering them toward the answers that will benefit the case. |
| Referring to Past Testimonies | Referring to past testimonies can help lawyers catch witnesses in contradictions or force them to explain discrepancies in their current testimony. |
| Cross-Referencing Statements | Lawyers may cross-reference statements made by the witness earlier in the deposition to expose contradictions or highlight inconsistencies. |
| Loaded Terminology | Lawyers may use loaded terminology or words with substantial implications to sway the witness’s testimony or influence their answers. |
| Feigning Uncertainty | Lawyers sometimes feign uncertainty or hesitation in their questioning to create doubt or confusion in the witness’s mind. |
| Bluffing | Bluffing involves asking questions that seem backed by robust evidence, even if the lawyer does not have the evidence to support the claim. |
| Non-Stop Questioning | In some cases, lawyers continue questioning witnesses without giving them time to think or clarify, hoping to catch them off-guard and get inconsistent answers. |
FAQs
What is a deposition?
A deposition is an out-of-court sworn statement provided by a witness who lawyers question to get information for a case.
Why do lawyers use leading questions in depositions?
Lawyers use leading questions to guide a witness’s answers in a specific direction, reinforcing their case or confirming key facts.
What is mirroring, and why do lawyers use it?
Mirroring involves subtly mimicking the witness’s behavior or speech to build rapport, make them feel more comfortable, and encourage open answers.
How can silence be used in a deposition?
Silence can pressure the witness to elaborate on their answers, often leading them to provide more information or contradict themselves.
What is a “set-up” question?
A set-up question is designed to lead a witness into a contradiction or damaging admission by framing the question in a way that makes the witness agree with an incorrect assumption.
How should I handle aggressive lawyers during a deposition?
Maintain your composure, respond objectively, and avoid being emotionally upset by their demands or combative manner.
How can I prepare for a deposition?
Work closely with your attorney, practice answering questions, and review the case facts to feel confident and prepared.
Conclusion
Depositions are a critical part of the legal process, and understanding the tricks lawyers use can help you prepare more effectively. Whether you’re the one being deposed or you’re a lawyer trying to gather information, knowing these techniques and how to handle them can make a significant difference. Always stay calm, stick to the facts, and consult your attorney to ensure you give the most accurate and helpful responses.