Michael Sean Quinn, Ph.D, J.D., Etc., Author

Quinn & Quinn
1300 West Lynn #208
Austin, Texas 78703

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            Depositions are, at least in many
lawsuits, the key discovery events.  After
all, most cases settle.  It, therefore,
makes sense that law firms spend lots of time, spend large sums of money
teaching their young litigation associates how to take depositions, how to
protect the record at a deposition, and how to protect the deponent, when that
is distinct from protecting the record. 
Many organizations give courses on deposition technique.  I’ve taught them myself in UT-CLEs.
            Depositions themselves are live, reported,
transcribed, printed, and frequently videoed. 
Lawyers are exhorted to prepare their witnesses carefully.  Lots of rules are preached about depositions.
Some of them are legal rules, for example, Assert
only the truth.
Others are what might be called strategic principles, for
example, Avoid arguing with opposing
Yet others are tactical rules, for example, Don’t call the opposing party an “idiot.”

            Another tactical rule is this one:  Never
volunteer any information so answer only the question asked!
It is a very
popular dispensation from lawyers to client, and even experts. Another way to
put roughly this point without sounding overly strict, rigid, mechanical,
and/or wooden is this: Let counsel come
to you.
Both of these tactical rules are eminently sound advice or teaching
tools—often, perhaps even usually. Nevertheless, not all of the tactical
“rules” or “tips” for  deposition
technique are as sound as the admonition to “Prepare Extensively! Prepare Carefully!” 
any case, the “’Never Volunteer!’ Rule”
of deposition technique is oft repeated to young lawyers and to witnesses.  It directs witness to provide minimalist
answers to exactly (and only) the questions which are put to them.  This maxim is not actually a sound universal
            As a universalistic or general
maxim, “Never volunteer!” is subject
to substantial doubts.  A number of
divergent considerations refute the maxim. 
At least five things are wrong with it, and there is a type of witness
who is far more effective if s/he testifies in contradiction to it and
volunteers lots of stuff.
            First, witnesses who
religiously follow the rule often sound or appear cagey.  They sound like they are trying to hide
truths.  If their performances are
recorded on videotape, their verbal bobbing and weaving does not help build an
aura of credibility.  It can be a
particular problem in states like Texas, where the depositions of non-party
witnesses can be used as part of a litigant’s case in chief, and regardless of
the availability of the witness. Looking like one is trying to hide important
information is not a sound tactic.
            Second, proponents of the maxim “Never volunteer!” claim that volunteered
answers may haunt one at trial.  Of
course, this is true.  On the other hand,
some depositions are not particularly effective at trial.  This is especially true if the witness has
given long answers.  A jury can seldom
follow the monotonous third of the deposition transcript if the answers involve
more than 250-300 words.  Thus, at least
some volunteering witnesses are not likely to create a record which can be used
for an effective impeachment if he volunteers at length.  Indeed, the hyper-technical, cagey-looking,
overly cautious witness, who answers in few words may create a more impeaching
transcript than the expansive witness who speaks at involved, interdependent,
and complex length.
            Third, some witnesses can
seldom be induced to follow the “Never
” rule.  Many witnesses
don’t like the rule.  The oath they have
learned from television, and elsewhere, including other testifying experience
they have had, is that they are sworn to tell not only the truth, but the whole truth.  The “Never volunteer!” rule seems to be
inconsistent with swearing that you will tell the whole truth.  Moreover, many people are temperamentally
ill-suited to the self-discipline (or, “anal retentiveness”) which is required
of a witness to follow the “never volunteer” rule.  One tactic of lawyers in depositions is to
spend the first 30-55 minutes on trivial matters to get the witness over his
preparatory deposition training and let his/her real—and perhaps
expansive—verbal-self emerge.  This move
can be extremely effective.
            It is probably better to prepare
witnesses to do things which they can do. 
Surely, the expansive witness should not overstate the case.  Obviously, witnesses should be induced to
review documents before making sweeping statements.  Indeed, they should be discouraged from
making any sweeping statements at all.  Sweeping
statements are often not true.  Nevertheless,
if volunteer they will, and most witnesses do, then perhaps it would be better
to hone their volunteering skills and encourage a style which is least
detrimental.  The maxims “Think about your
answer.” AndAvoid wild, huge
generalities!” And “Go slow and don’t leap.” Are all sounder and better
principles than “Never, ever volunteer
any thing!
third point is true, even though I concede, and getting witnesses to go slow
can be maximized by discouraging any volunteering.  Often getting a witness not to volunteer is
not easy, particularly if s/he has an inclination toward being loquacious.  This is especially true if the witness has a
prideful streak—a hubris-tic
            Fourth, it is important to
keep in mind what litigation is all about. 
Most cases settle.  Most cases
settle, at least in part, on the basis of depositions.  There are two features of depositions that
impact settlement.  One of them is what
the witness says.  Another is the
demeanor of the witness.  Lawyers make
settlement calculations based in part on their estimate of the quality of the
opposing witnesses.  Under these
circumstances, does it make sense to hide the ball.  Obviously, sometimes it does.  Frequently, however, it does not.
            Fifth, when a witness is
asked to discuss a document, many lawyers think that they can score points by
having a witness talk about one section of the document, without references to
others.  If the witness is quite familiar with the document, e.g., if the
witness is an experienced insurance adjuster, underwriter, or internal advisor,
it is frequently better for the witness to refuse to let the lawyer taking the
deposition restrict his/her testimony to a single clause.  This is
especially true if the lawyer is trying to create a suggestion usable later
that one part of a document is more important than another, when they are
really about the same thing, or—at least—lap over on the some of the same
matters.  In this kind of case, not only should the witness volunteer, the
witness should insist on talking about both–or, all–of the relevant passages
of the document. 
            This requires not only volunteering
but pushing.  If the witness does not have the type of insistent
personality which is required for pushing examining counsel, if the witness
tries to address a topic and is cut off, then the acts of cutting off from the
taker of the deposition can be used at trial to make counsel look like a
distorter of important matters.  (Counsel defending the record is well
advised to review such matters with the witness on breaks and make the matter
one upon which there is explicit testimony.  Of course, this can be done
by asking cross- or counter-questions when the time comes, later in the day,
            The proposed universal and rigid
witness rule “Never volunteer!”
is a bad one.  It supposes that witnesses are inferior to lawyers in
intelligence, any sense of strategy, articulateness, and perhaps more. 
The truth is that lawyers are often not terribly well prepared for depositions.  In addition, many of them take such joy in
controlling witness that telling them things they don’t expect and don’t want
to hear is frequently rather upsetting. 
As a consequence, these types of lawyers often perform worse after the
negative surprise is, as it were, done to them, than they otherwise
would.  Perhaps this is a sixth reason why “Never volunteer!”
should be rejected as a rule to be taught to witnesses.  Unprepared power-trapping, narcissistic
litigators often perform worse in depositions when and after they are
negatively surprised!
Witnesses with imagination and creativity can be a
problem.  They can also be a blessing.

Originally posted on 10/03/2014 @ 8:01 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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