In the martial arts, you can sometimes see fear or uncertainty in the eyes of an opponent or attacker. Sometimes you cannot see it until you are under way. Litigation is like that. People huff and puff that they will blow your house down but it is not until they are confronted that you really see if they mean it. The earliest time that this typically occurs in litigation is at the deposition. That is when a party must testify under oath about their case.
A good litigator will leave no stone unturned at this deposition. This means not accepting “I don’t knows” and “I don’t recalls” as answers. If that is what you get, the litigator needs to pursue it further and lock out any other possibilities that might arise later in the case. The way to do this is to ask the witness whether there are any notes or documents that might help him recall. Or whether the witness did recall at one time but forgot now. Or whether he spoke to someone else about it once who then might be called as a witness. Ask follow up questions to fully exhaust a topic before moving on.
The lawyer and not the witness must control this process. This type of confrontation locks a witness to their story and proof or lack of proof. It is through this process that you can determine the real strength of your opponent’s case. A polite but firm deposition should not leave any wiggle room later for a witness to change the story or proof. Look the witness in the eyes and see if you can determine the uncertainty in his evidence. It may lead to a settlement and avoid a real battle later. It is the same thing as when an opponent in the martial arts suddenly realizes that he is overmatched.
If you have any legal questions or need help with a deposition, please contact Attorney Scott Lanin at (212) 764-7250 x 201 or use the contact form in the right sidebar.