By Daniel Plake
Assistant County Attorney in Montgomery County
You lead your client into the conference room, take a seat across from the court reporter, and present him for deposition in a civil case. After a few formalities, opposing counsel begins: “Can you tell me your name?”
The witness responds, “Yes.”
Counsel slowly raises his head from his outline and says, “So that’s how it’s going to be?” You think to yourself, “At least he is listening to the question”—which is exactly what you prepared the witness to do.
Depositions in civil litigation
I have practiced civil law since 2008, and I have represented Montgomery County and its related officers, entities, and employees as an assistant county attorney since 2011. Depositions are an inevitable and integral part of civil practice, and I have taken or attended dozens over the years. As an attorney for a government entity and in some instances its employees, my clients are often deposed in civil cases in which they are just witnesses.
For those not familiar with depositions, the civil world frowns on ambush trials. To that end, the parties have access to depose witnesses within the limits prescribed by the federal or Texas Rules of Civil Procedure. Almost every civil case requires depositions. As an attorney for a government entity, you may be taking a deposition, defending the deposition, or presenting a disinterested witness. Each role requires us to prepare the witness in a substantively different way, but there is commonality in preparing a witness for the procedure itself and how to analyze and answer questions. This commonality is the subject of this article.
It is important to consider some preliminary matters before you ever sit down with a witness.
Why is my witness testifying?
The answer to this question will influence how you prepare the witness. Consider these basic classifications:
1) The government entity is a party. (Note: The witness and the government entity may both be parties.) This can be a minefield. Things you should consider in such a situation:
a) Are there any conflicts of interest?
b) Can the witness and entity both be a party (e.g., Texas Tort Claims Act vs. §1983)?
c) Has the entity produced records?
d) Does the entity have records?
e) Do those records cast the witness in a bad light?
f) Is the witness disgruntled about an employment issue?
g) Was the witness disciplined by the agency due to acts related to the case?
2) The witness is a party. This usually means the witness has been sued. In addition to the above “minefield” considerations, you may also have to contend with questions such as, “Should I transfer all my assets to my wife’s name?”
3) The witness and/or government entity may become a party. Occasionally, a witness can talk himself or the government entity into a lawsuit. You should analyze the case (read the pleadings, talk to the lawyers, and talk to your department head or elected official) to see if there is an angle where the government entity or the witness might be dragged into this suit. If so, prepare the witness for that possibility, and prepare yourself to make any necessary objections.
4) The witness is just a witness. This is very common in family law, fire and arson, and auto collision cases. Consider:
a) whether you, the prosecutor, even need to be there,
b) objections you may make (probably not many), and
c) instructions not to answer.
5) Is your witness potentially an expert? Face it: Almost every party to a lawsuit wants law enforcement on its side. These are not normal paid experts; they are benevolent, honorable, honest, and well-trained; they are beholden only to the truth; and they have no financial interest in the outcome of the case. They can make great expert witnesses, but they need to be ready for the fight. If a party is attempting to have your witness admitted as an expert, the questions will go beyond the ordinary “who, what, when, and where” and instead delve deep into their training, experience, materials on which they relied, assumptions, conclusions, and the basis for those conclusions. One side will walk them through the process and question them about the scientific method and each of its considerations, and the other will get them to admit everything they did wrong. It can be hard on a witness and will feel like a tug-of-war. Many law enforcement witnesses are used to cross examination in criminal cases, but some take the negative allegations personally.
Other considerations before a deposition include:
1) Do you need additional security at the deposition? There are many reasons additional security may be a good idea; probably the most common is if the State’s witnesses arrested one of the parties. In my office, we have investigators who can sit in if needed; we could also call any of our law enforcement clients for assistance.
2) Is the time and location convenient for you and the witness? You can offer to host the deposition; most attorneys will agree to this if you help coordinate the witness’s appearance.
Once you have considered the preliminary issues and made any necessary adjustment to the substantive portion of the preparation, it is time to prepare your witness.
What to expect procedurally
I spend the first portion of my prep session with procedural expectations. The purpose is to make sure everyone knows where to be and when to be there and to eliminate any procedural anxiety the witness may have. It is quick: “You are expected to be at 123 Main, Suite 100, on March 4 at 10:00 a.m. Do you have any conflicts or potential conflicts I need to address?”
Next, cover the appropriate attire. It may vary depending on the witness’s relation to the case. If the witness is a law enforcement officer, check with his agency to see if it has a policy on acceptable dress when testifying in civil cases. In my opinion, it is acceptable but not required for an officer to wear his uniform when testifying if his deposition is related to his work as an officer. You should also consider practical issues, including whether the officer is on-duty the day of his deposition and will appear immediately after, immediately before, or during his shift. If so, he will almost certainly be in uniform unless you can provide time and a location to change. For ladies, I always request that they wear something that covers their shoulders because I had a domestic violence victim removed from court before her protective order hearing for not having her shoulders covered. Dress may require additional thought if the deposition is by video or by Zoom.
Tell the witness whether the deposition will be taken by stenograph and/or video. If it is a Zoom deposition, consider prepping him by Zoom or at least scheduling a quick Zoom meeting with him to confirm he knows how to appear and how to work the sound and video. Also, go over sharing documents and videos with sound, especially if he is to produce documents during the video call.
Cover how the deposition will start. Do your best to estimate who will be there (you might gain this information from talking to the attorneys). I say something like, “You will be at the head of a table, a court reporter will be directly to one side, a videographer will be pointing a camera at you, I will be next to you, the summoning attorney will probably be next to the court reporter, and she gets to go first.” You may want to know if a guy your witness arrested, shot, tased, or removed from his home for family violence is going to be in the same room; make any arrangements you or your witness think are prudent.
Especially if this is the witness’s first deposition, I make sure he is ready for the following questions:
• Are you on any medications that might prevent you from telling the truth today?
• Do you want to read and sign? The court reporter will ask if the witness would like to read the deposition and return a signed errata page with any changes. If not, the deposition will be transcribed and produced. If the witness does wish to read and sign, he will have 20 days to make any corrections once he receives the transcript. This is not a chance to change testimony—doing so will certainly subject the witness to a second deposition. Rather, it is an opportunity to correct errors. I usually insist on reading and signing if the witness or government entity is a party. If the witness is a disinterested one, I let the witness decide. It is a good way to get a free copy of the transcript (though it is not the final transcript), so if a witness would like a copy, have him read and sign. Because there is no penalty for not returning the signed errata sheet, there is really no downside in electing to read and sign—other than it delays release of the transcript by about 20 days.
• Did you discuss this case or deposition with anyone?
• How much time did you spend with your lawyer preparing? This is a fair question; however, the content of the discussion is privileged.
• Did you review any documents in preparation for your deposition? For some reasons, witnesses like to say “no” to this question, even if they did review documents. Explaining this up-front has helped reduce embarrassing corrections.
• Discuss objections and instructions not to answer. I tell the witness, “A good practice is to pause briefly after each question to allow attorneys to get their objections on the record without talking over each other. As you will see when we cover rules of testifying [below], this brief pause will benefit you as well. If someone objects, you still have to answer the question. The only time you do not have to answer is if I instruct you not to answer. The only time I am likely to instruct you not to answer is if you are asked personal questions.”
Discuss breaks. The general rule is that the witness can take a break anytime he wants, so long as there is not a pending question. The best approach is for the witness to advise the attorney that he will need a break soon, and let the attorney pick a good stopping point. If the attorney is unwilling to allow breaks (which happens occasionally), then I will call a break immediately after an answer. This is rarely a problem.
Discuss the risks and benefits of taking documents and notes to the deposition. If the witness takes documents with him, then the other attorney can review those documents. Considering this, I warn that witness not to make any derogatory notes. If the witness does not mind and feels better having his own copy of his report to rely on, I generally allow it. I review the document before the witness takes it into the deposition to make sure there are no issues.
Discuss the types of depositions you have seen. In my experience, there are two types: investigatory and soundbite. In an investigatory deposition, the opposing lawyer will want to know what a witness knows and believes and how he knows it or why he believes it. In the soundbite deposition, she is going to ask horrible questions that a witness probably will not understand. I tell the witness not to answer or agree just because the lawyer is asking. Do not try to make the lawyer happy by agreeing with her.
I also explain to the witness that I cannot assist in answering questions.
How to answer questions
Witnesses who are just witnesses, as opposed to experts, are always surprised that I spend more time covering how to think about questions than I do on the substantive preparation. I start by telling my witness how important accuracy is in his answers. I remind him that lawyers ask terrible questions, so if he does not understand something, it is not because he is missing something—it is because the question is terrible. Do not be pressured into answering a bad question.
Then I cover what I call “Daniel’s Five Rules of Answering Questions.”
Rule 1. I hope this is the easiest rule: Do not lie! I do not care how senseless a lawyer is, she will know if a witness is lying. I tell my witnesses, “If you lie, I cannot help you, but if there is something you want to avoid for whatever reason, we can talk about that now.” If a witness intends to lie, we must advise him of our obligations if he is lying.
If a witness does not want to answer questions about X, we have to consider how to proceed under the specific circumstances. For instance, if a witness wants to avoid certain subject matter, he may use non-responsive answers to try to avoid them. Witnesses may avoid topics for a variety of reasons—for example, he did something wrong and does not want to admit it; he does not want to be called to testify so he will be difficult or evasive; or he has some other agenda.
A good example of an evasive answer to counsel’s question is:
“How old are you?”
“I will be 50 in January.”
Most people will assume by this answer that the witness is 49, but in reality, he could be 20—so long as his birthday is in January—and the answer is still technically accurate. (For the record, I do not teach witnesses to be evasive, but some figure out how to be, and we need to be prepared to deal with them.)
Rule 2. Answer the question asked and stop talking. To illustrate my point, I pose this test: “Answer this question: Can you tell me your name?” About 90 percent of the time, the witness tells me his name, and I reply, “No, you didn’t answer my question. Try again.” If the witness answers the question with “yes,” I approve and tell him that’s the level at which I want him listening to the questions.
Now, that is the general rule, but if opposing counsel really does ask, “Can you tell me your name?” I advise the witness to go ahead and state his name—I don’t want him coming across as unreasonably difficult. The attorney may think he’s an evasive witness, which could result in unintended and unwanted consequences. But the point is I want my witness to listen to the questions that closely.
Next I ask myself questions, answer those questions, and at the end, I ask the witness to tell me to what I testified.
“Mr. Plake, do you know if she arrived at the bar before 10 p.m.?”
“Yes.”
“Do you know if she was wearing a blue dress?”
“Yes.”
“Do you know if she left with a man?”
“Yes.”
“Do you know if she left after midnight?”
“Yes.”
OK, what did I testify to? Nothing! I testified to absolutely nothing. All I said is that I know the answers to the questions; I did not answer a single question. I make sure the witness understands.
Once we have gone over the general rule to answer the question asked and then stop talking, I address the exception. If counsel is asking questions like the “do you know” questions that I just covered, consider answering them with a phrase indicating what question you are answering. For example, with “Do you know if she arrived before 10 p.m.?” the witness could answer, “She arrived after 10 p.m.” Answering in this way violates the general rule, but it will make a cleaner record.
In one of my depositions, the attorney asked my officer, “Were you wearing your standard duty gear on the night that you arrested my client?” and the officer said yes. Then he asked, “Are you wearing your standard duty gear today?” and the officer again said yes. Two hours later, counsel asked, “What is on your duty belt?” One item the officer mentioned was an ASP baton, which prompted counsel to ask, “Why didn’t you use your ASP baton when you arrested my client?” The officer responded, “Because I did not have it.” Of course, the lawyer thought he struck gold, catching the officer in an inconsistency: “Earlier you testified that you were wearing your standard duty gear when you arrested my client, and now you are changing your testimony and saying you were not—were you lying then or are you lying now?” The officer responded, “I was not ASP baton-certified at the time, so it was not part of my standard duty gear when I arrested your client.” This whole exchange could have been avoided if the officer had answered, “I was carrying X number of items” or if the lawyer asked a better question.
If a witness answers in this manner, the answer is technically objectionable as non-responsive, so if the attorney objects, I tell witnesses to simply answer under the general rule. For example, the attorney might ask, “Do you know if she arrived at the bar before 10 p.m.?” and, trying to be clear, a witness might answer, “She arrived about 10:30 p.m.” The attorney may respond with, “Objection, non-responsive—thank you officer, but what I asked is do you know if she arrived before 10 p.m.?” The officer should then respond, “Yes.” The attorney may follow up with, “How do you know when she arrived?” and he may reply, “I was watching the bar’s closed-circuit TV from the office. We were doing a sting trying to catch a bartender selling to minors.” As you can see in that instance, it was not as bad a question as it appeared; rather, the attorney was trying to figure how the witness obtained his knowledge.
A final caveat to the second rule: Some lawyers read from scripts or outlines. As a result, the following exchange may happen:
“What is your name?”
“My name is Deputy Smith, and I work for the Montgomery County Sheriff’s Office.”
“Where do you work?”
“The Montgomery County Sheriff’s Office, I’ve been there for 10 years.”
“How long have you worked there?” (etc.)
Rules 3 and 4. Rule 3 is do not guess, which I’ll cover simultaneously with Rule 4, which is do not assume.
If asked how many hours a week he works, a witness probably knows his timecard well enough to answer, “I work about 42.5 hours a week.” Notice two things: The estimate is on a topic the witness is familiar with, and he qualified it with the word “about.” That is OK.
Next I try an exercise that involves a lawyer’s trick: bracketing. “Look out my window at that tree,” I say. “How many leaves are on that tree?”
The witness will probably say he does not know.
“Are there more than a million?
“I don’t know.”
“More than 100,000? More than 10,000? More than 1,000? More than 100? More than 10? More than one?” The witness has probably repeatedly said he does not know. If he says “yes” at any point, I follow with, “Come on! You mean to tell me you do not know if there is more than one leaf on that tree?” The witness will likely say there is more than one, to which I reply, “Are there more than two? Are there more than three? More than four?” The lawyer is bracketing—trying to pin the witness down by narrowing the questions.
Do you see the problem? Where does a witness stop? Once he stops and says there are more than X number of leaves on the tree, the attorney has now committed the witness to an answer that he already stated he did not know. Do not fall for bracketing, I advise witnesses; just keep saying, “I do not know how many leaves are on that tree,” no matter how stupid opposing counsel makes you feel for saying it.
In addition to making a witness guess and bullying him into answering a question he does not know the answer to, I point out to the witness that in going through this exercise, I also got him to assume some things. First, which tree was I pointing to? I can count 17 trees from my desk. Some of them are pine trees. Are pine needles considered leaves? I don’t know because I am not an arborist or a botanist, and neither is my witness. My questions got him to assume to which tree I was pointing; if it was a pine tree, I got him to assume that pine needles are leaves. I got my witness to answer questions to which he didn’t know the answer.
Rule 5. Do not answer a question you do not understand. How does this happen? First, you might not understand a word, but you might think you know what it means from the question’s context. Do not do that. If you do not understand a word, do not answer the question—just tell the lawyer you do not understand and she will rephrase.
Second, believe it or not, some people answer questions to make the lawyer asking the questions happy. Do not do that. Only answer what you know.
The final test
Now that we’ve been over my five rules, we are ready for the final test. I ask my witness, “Have you stopped beating your wife?” There are three ways to answer this question: yes, no, and “I’ve never beaten my wife.” But most people instinctively know there’s something wrong with the question.
First off, it assumes that the witness beats his wife. If he caught that assumption, congratulate him. If not, reiterate that we just went over assumptions, and this is another example—he has to think about questions before answering. This question also has another major flaw: Two of the possible answers are ambiguous. What does it mean if you answer yes? It could mean you used to beat your wife, and now you do not. What does it mean if you answer no? (Give the witness time to answer, and really press to think of the two opposite meanings.) It means you either beat your wife and continue to do so, or it means you have never beaten your wife and therefore have never stopped.
I can tell you from asking dozens of witnesses this question that about 80 percent think a “no” answer means you beat your wife, and about 20 percent think it means you do not beat your wife. But that’s the problem—“no” is ambiguous: It has two opposite meanings. At the end of the deposition there will be a transcript, black and white, and 80 percent of the people who read it will think you beat your wife if you answered “no” to such a question. A smart witness would have trusted his instincts and said, “I do not beat my wife.” If the attorney objects (non-responsive), stick to your guns—it is a flawed question.
In summary
Let’s bring this all together. When a witness is asked a question in deposition, he must go through this process. (All of us already do this all the time—we just do not think about it.) A witness has to think:
• Do I understand this question?
• What is the attorney asking me?
• Do I know the answer?
• Is it a truthful answer?
• When I say that answer, what does it mean?
Then, and only then, is a witness ready to answer the question. Do not worry—going through these questions takes only a second, which works out perfectly in a deposition because a witness must already pause briefly to allow everyone to get their objections on the record. I also warn witnesses that they will be tired after a deposition—listening to all the questions takes a lot out of you.
Then I move to the substantive portion of preparing the witness. But that’s an article for another time.
My hope is you are now impressed with the client’s answer at the beginning of this article!