Dealing With the Difficult Opponent

Sometimes the witness’s counsel will attempt to disrupt your examination by interjecting comments after difficult questions before the witness starts to answer. Few comments are more infuriating than “if you know,” or “if you remember.” Such comments are almost invariably followed by an answer that the witness does not know or remember.

These comments are seldom justified, although sometimes provoked by the defender’s realization that the witness has slipped into the school-examination mode of answering questions; that is, guessing when he does not know the answer in the hope of receiving extra credit if he happens to be right. One non-confrontational way for the witness’s counsel to deal with that situation is to say to the witness:

“Answer Mr. Nolan’s question if you have the information called for. But if you don’t have it, say so. We don’t want you to guess.”

Perhaps because it begins with the direction to answer the question, this way of saying “if you know” rarely provokes a rebuke from the interrogator.

Generally, as the interrogator, you should not tolerate remarks such as “if you know” or “if you remember.” As in dealing with the witness who talks too much, you may stop such prompting by saying:

“As I told the witness at the start of the deposition, if he does not know or remember the answer to a question, he should say so. That instruction applies to every question in this deposition. I would ask counsel not to interrupt this examination with such comments. If that practice persists, I assure you that I will recess this deposition and apply to the court for relief.”

In the face of this kind of threat, the witness’s counsel will usually stop making such comments, because a judge would be likely to frown upon them.

Although somewhat more provocative, another possibility is to ask the witness, “Did you take your lawyer’s comment, ‘if you know,’ to be a signal to say that you don’t know?” Once in a while the witness will answer “Yes” before his lawyer can react.

More difficult problems may arise from comments in which the witness’s counsel purports to be seeking clarification of the question. For example: “Do you mean before Oct. 1, 2000, or at any time?” or, “Do you mean besides what he told you an hour ago when he said . . .?” Speaking objections, such as “Objection on the grounds that it is not clear whether the witness is being asked . . . ,” present the same problems and are in violation of Fed. R. Civ. P. 30(d)(1), which provides that objections “must be stated concisely and in a non-argumentative and non-suggestive manner.” Again, the interrogator may reprimand opposing counsel and give another stern warning. But opposing counsel knows that the interrogator will hesitate to trouble the court with this sort of objection, especially because the judge would probably have to read a good portion of the deposition whether the interrogator has a legitimate grievance. Nonetheless, at some point, the interrogator will conclude that such remarks have become so intrusive as to interfere with his right to examine the witness. Once this threshold is crossed, in spite of his reluctance, he should apply to the court.

Refusing to Rise to the Bait

Some lawyers defending depositions are so offensive that it is hard for the interrogator to refrain from taking the bait and answering in kind. This is rarely good strategy. If the interrogator diverts attention from the witness to trade barbs with the opposing lawyer, the defender will have achieved the objective of disrupting the deposition by successfully interjecting himself between his client and the interrogator.

Similarly, an obnoxious interrogator may tempt the defender to jump in and trade insults. Again, the interrogator may be the winner, because the witness may become rattled by all of the verbal jousting and blurt out harmful answers.

Neither the interrogator nor the defending attorney should allow himself to become angry during the deposition, any more than they would allow that to happen during a trial. The lawyer who is genuinely angry is out of control and likely to say and do things he will regret. There may be times when the lawyer decides that there is some advantage in appearing to be angry — but it should always be strictly an appearance and not a fact.

As difficult as it may be, try to ignore provocative comments; if you are the interrogator, persistently press on with the deposition. If opposing counsel’s comments cannot be completely ignored, it is usually best to make the response a matter-of-fact “We disagree,” or “Let’s move on,” or “Let’s get the work done and save the chatter for later.” Go off the record (less confrontational) and admonish your opponent. On the record, you should set out clear ground rules about what conduct is not acceptable. If even such refusal to rise to the bait does not stem the disruptions (and if the record will adequately reflect the intrusive comments or actions), give a warning: state on the record your intention to adjourn the deposition and seek a court order unless opposing counsel stops attempting to disrupt the deposition. You must be prepared to follow through if the behavior continues.

Focusing on the Deponent