Before we get into our discussion, I’d like to ask you a few questions:
1. How much time do you spend giving admonitions at deposition?
2. Which admonitions do you give?
3. Why do you give them?
4. Is any of that time spent establishing rapport with the witness?
Many attorneys see admonitions as an inconvenience. They often go through a cursory list of poorly administered admonitions because they feel obligated to do it but they don’t see the real value in it. This is a huge mistake and could be costing you valuable information in your case.
1. Admonitions allow the attorney to build rapport with the witness:
Unfortunately, many attorneys believe that intimidating witnesses or taking a hard line with witnesses is the best way to get favorable testimony. While having tight questions for cross-examination purposes is important, the ability to have a genuine conversation with a witness is often the best way to get good testimony.
How many of us have started the deposition with the words… “You just took an oath to tell the truth and if you change your testimony later, I or someone from my office will call your credibility into question at trial”? Translation: I get to call you a liar if you answer a question you don’t understand.
I would suggest that building rapport with a witness is the best way to get a lot of information from the witness, whether that testimony is good or bad. This approach helps minimize surprises at trial. Put yourself in the shoes of a witness. You are nervous about your deposition. A stranger is sitting across from you who is going to grill you. Your lawyer has likely told you that this stranger is the enemy. You have your walls up and are likely feeling nervous and alone. How would you react to that stranger throwing you a lifeline by telling the ground rules for the game? By telling you that you are being told the rules not because s/he wants to intimidate or trick you but because we all need to be on the same page, in order to get a clear record? Would this make you more likely or less likely to be at ease and willing to have a conversation?
2. Admonitions provide the witness with the rules for the deposition process:
By going through the admonitions, you are allowing the deponent to play by the same rules as the questioner. This is only fair because you cannot hold the witness accountable later, if s/he did not know the rules for the deposition process. After all, you don’t want to have the witness playing baseball while you are playing basketball. Having everyone on the same page allows for a clear record. It also makes your and the court reporter’s jobs a lot easier. Most importantly, when someone (usually the senior attorney who is going to conduct the trial) goes to read the transcript later, that person is going to understand exactly what was said and how the answers impact the case. So make sure that everyone knows the rules and knows how they will be applied. You and your colleagues will be glad you did.
3. Admonitions lock in the witness to help prevent damaging changes at trial:
By giving admonitions, you are making sure that the witness is locked in to the answers s/he is giving. This can be done by giving clear admonitions and making sure that after you give each separate admonition, you ask the witness whether or not s/he understands what you just explained. Once s/he acknowledges that the admonitions have been understood, and that s/he will let you know if they don’t understand a question you ask, the witness is locked in to the answers s/he gives at the deposition. If the witness changes his or her testimony later, they will be subject to impeachment during cross-examination.
So, ask yourself….
1. Would you rather have good rapport with deponents and get better answers?
2. Would you rather have the witness understand the process?
3. Would you rather have the entire story?
4. Would you rather have testimony which is locked in?
Most of all….
5. Would you rather avoid surprises at trial?
If the answer is “yes” to all of these questions, don’t skimp on the admonitions. Taking the time to give the admonitions will provide you with testimony which is built on a solid foundation. In my next blog post, I will talk about the specific admonitions which must be given to create the solid foundation we all want. Stay tuned!
To download your deposition admonition cheat sheet, click on the link below.
Check back soon for Parts 2 and 3 in this series.