If you take depositions, it’s inevitable that you’ll encounter deponents who are difficult to question. In addition to maintaining a professional manner, consider using one or more of the following strategies, based on the difficulty you’re facing.
The confused witness. This kind of witness typically responds to probing questions by asking questions. Try to rephrase the questions for the record and continue to seek answers. If you’re confident the questions are clear and the witness continues to provide evasive responses, it may be necessary to adjourn the deposition and file a motion to compel answers under CCP §2025.480.
The conveniently forgetful witness. This witness “cannot presently recall” much of anything unless the information asked for is innocuous. The admonitions given to a deponent at the outset about medication or other reason for memory impairment is partially in anticipation of this type of response. Although a witness can’t be expected to remember the precise details of remote or even recent events, if the responses seem deliberately evasive, you might tell the witness to take all the time needed to think about the questions, note for the record the time that elapses, and ask the question again. If this process is repeated for each critical question, a record of nonrecollection is established and can be used in a summary judgment proceeding or at trial, with the witness hard-pressed to explain a sudden resurgence of memory. You might also ask the witness whether there’s anything that would refresh his or her recollection.
The literal witness. This type of witness wants to answer the question no and valiantly strives to do so. For example, you ask, “Did your supervisor ever express any dissatisfaction with your job performance?” and the witness answers, “Not specifically in those words, no.” In such cases you may try to rephrase the question: “Do you have any general recollection of your supervisor expressing dissatisfaction with your job performance, regardless of whether those words were used?” Although it’s tedious to take a deposition this way, not doing so leaves you with a record of meaningless responses that have committed the deponent to nothing.
The rambling witness. This witness provides long, narrative, and often, uninformative answers to relatively simple questions. The rambling response isn’t necessarily intended to be evasive. It may reflect the deponent’s anxiety or nervousness. Often defending counsel takes the lead in addressing the problem by telling the client, “Just answer the question.” If the problem persists, you can move to strike the answer as nonresponsive and ask the court reporter to read back the question as many times as necessary.
Get more practical guidance on handling problems that commonly occur during deposition in CEB’s California Civil Discovery Practice §§6.68-6.90 and in CEB’s program Preparing for and Taking a Deposition, available On Demand.
Other CEBblog™ posts you may find useful:
- 4 Preliminary Questions for Every Deposition You Take
- 5 Ways to Defeat Deposition Abuse
- Don’t Be Trapped by Your Deposition Outline
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