“NEVER VOLUNTEER”: SOUND DEPOSITION ADVICE?

            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 counsel. 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!” 

In 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 rule.

            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 volunteer!” 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.” And “Avoid wild, huge generalities!” And “Go slow and don’t leap.” Are all sounder and better principles than “Never, ever volunteer any thing!.” 

This 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 personality.

            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, usually.) 

            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.