HOW TO BE A DIFFICULT DEPONENTS WITHOUT BEING EVASIVE
Why fighting the examining lawyer can make you easier to examine
an Essay by Glenn C Nunes
Most advice about preparing for a deposition is predictable. Tell the truth. Listen carefully. Don't guess. Don't argue with the lawyer. Answer only the question asked. All good advice.
But it leaves out something important. You want to win. Which leads to fighting behavior.
The lawyer questioning you has a job to obtain testimony ideally in a form that is short and simple, unequivocal. Lawyers call this getting a clean transcript.
A clean transcript is particularly valuable when it contains admissions that leave little room for explanation. You knew about the problem. You approved the transaction. The rule applied without exception. Those were all your reasons. Nothing could change your answer.
Obtaining that kind of testimony can require considerable skill, preparation, patience, and persistence. A difficult witness makes the lawyer do the work necessary to obtain an admission in a clean transcript.
The risk is the witness intending to be tough appears to be misleading, pretending not to understand, and concealing. You must testify truthfully and answer proper questions completely. You also probably want to be perceived as credible and ethical.
1. Being Difficult Starts With Preparation
It might seem that the hardest witness to examine is one who knows very little. A witness who answers "I don't remember" to question after question appears to give the lawyer nothing.
In practice, that witness often gives the lawyer a great deal.
A manager who cannot recall the basis for her own decision may look careless. An executive who never reviewed the records of a dispute that became a lawsuit may look indifferent. A long series of memory failures can begin to look less like honest limitation and more like strategy.
The difficult witness is well prepared, not strategically uninformed.
Before the deposition, review the relevant documents with your lawyer. Refresh your memory about dates, participants, and decisions. Then sort what you remember independently from what you know only because you read it.
That distinction lets a prepared witness give more accurate testimony while remaining clear about its source:
A: I remember the meeting. I don't independently remember the date, but the calendar entry I reviewed shows March 4.
If you are testifying on behalf of an organization rather than as an individual, preparation is not optional. The organization may be required to prepare you on the designated topics, and an uninformed answer can bind it.
Everything that follows assumes you have prepared. The techniques in this essay protect accurate testimony. They are not a substitute for knowing the facts.
2. Answer the Question—Not More, Not Less
One of the greatest vulnerabilities of deposition witnesses is the desire to appear intelligent.
In ordinary life, we are rewarded for knowing things. Suppose you have managed a company's customer service department for twenty years. You might be tempted to explain the entire process: how complaints are received, who reviews them, what records are created, when supervisors become involved. You sound knowledgeable…
But every detail you volunteer gives the lawyer something else to investigate. Worse, your explanation may sound more authoritative than your knowledge justifies. Perhaps you described the procedure as you understand it generally. Perhaps some departments did things differently, or the procedure changed over time.
If the question is genuinely unclear, ask what the lawyer means.
A: Are you asking about the written procedure or what employees actually do in practice?
That is a legitimate distinction. The two may not be identical.
The same applies to broad questions about events.
Q: Tell me what happened with the Johnson account.
The account may have existed for ten years and involved hundreds of transactions and several disputes. A witness might reasonably respond:
A: Are you referring to the billing dispute or the termination of the account?
That question does not obstruct the examination. It identifies a genuine uncertainty about its scope. The lawyer must then decide what to ask.
There is a limit. If you understand which meeting or event the lawyer means, you cannot insist that every detail be specified before you answer. Broad questions are legitimate discovery questions.
The rule is simple: Answer the question the lawyer actually asks. Don't invent additional questions and answer those too.
Not volunteering is not withholding
An equally important rule runs in the other direction.
Refusing to volunteer information is different from withholding responsive information.
Q: What did the customer tell you during the call?
A: She said the product arrived damaged.
If the customer also told you she cut her hand opening the box, that answer is incomplete. The question asked what she said. You knew more, and you gave only part of it.
The same is true when a clear question calls for all your reasons, everyone who attended, or everything you were told. You must give everything you know, not one or two items while you wait to be asked again.
A witness who parcels out responsive information risks appearing evasive, even when that was not the intention.
The line is between what the question calls for and what it doesn't. Give the first fully. Leave the second for the lawyer to ask about.
Don't fill the silence
Sometimes a witness answers a question and the lawyer says nothing.
Silence.
The witness begins talking again. "Actually, there's something else I should mention…"
An examining lawyer may wait deliberately, hoping you will elaborate.
When you have answered completely and accurately, stop. If the lawyer wants more, the lawyer can ask another question.
The silence belongs to the lawyer, not to you.
3. Watch the Words
Words matter in depositions because lawyers frequently convert ordinary language into precise factual or legal commitments.
Q: You were responsible for employee safety, correct?
What does responsible mean? Developing safety policies? Enforcing them? Training employees? Reporting problems?
A witness who simply answers yes may accept a broader responsibility than the witness actually held. A careful witness might say:
A: I was responsible for conducting safety training. Other people handled inspections and enforcement.
Or:
Q: You approved the expenditure?
A: I approved the invoice for processing. I didn't have authority to authorize the expenditure itself.
That distinction may be critical. An examining lawyer may try to collapse two different concepts into one convenient word. Don't accept the substitution when it changes the meaning of your testimony.
The same problem arises with words such as always, never, appropriate, reasonable, significant, authorized, and approved.
But asking for definitions can become a trap of its own. If you ask what a word means, the lawyer may ask what it means to you, then use your definition in later questions. Don't turn every familiar word into a vocabulary dispute. When you can answer accurately using the ordinary meaning, answer.
The objective is not to make every question difficult. It is to keep an imprecise question from producing a misleading answer.
Don't let the lawyer rewrite your answer
Examining lawyers frequently restate testimony. A fair summary can make the record clearer. But a summary can also quietly remove a qualification.
Q: Did you know about the leak before the inspection?
A: I had heard there might be a leak, but I hadn't seen it.
Q: So you knew about the leak?
A: Yes.
That second answer erases the distinction the witness just drew. A better response:
A: I had heard there might be a leak. I didn't know whether there was one.
This is not quibbling. It preserves the difference between rumor and knowledge.
Other distinctions can be equally important:
What you observed versus what someone told you.
What you knew at the time versus what you learned afterward.
What you believed versus what you knew.
What you intended versus what happened.
What generally occurred versus what happened on a particular occasion.
A lawyer may build the next question out of your own words, so it sounds like a faithful repetition. Listen carefully. If the summary is accurate, agree with it. If it is incomplete or materially different, correct it.
Never agree to an inaccurate summary because correcting the lawyer feels awkward or repetitive.
4. Don't Accept the Lawyer's Premise
People generally prefer agreeable conversations. We say yes when a proposition sounds approximately right. We hesitate to contradict someone who sounds confident.
Examining lawyers understand this. Questions may begin with "Would it be fair to say…" or "Would you agree…" or "Surely you understood…"
Those phrasings make disagreement feel impolite. But a deposition is not a social occasion.
Q: Would it be fair to say you ignored the tenants' repair requests?
A: No. I forwarded each one to the property manager.
Address the substance. Don't argue about whether the question was fair.
From guideline to absolute rule
Lawyers often begin by asking you to agree with principles that sound reasonable.
Q: Safety is important to your company?
A: Yes.
Q: Employees should follow safety procedures?
A: Yes.
Q: Supervisors should enforce those procedures?
A: Yes.
Q: And a supervisor who fails to enforce a safety procedure is putting employees at risk?
The examination has moved from general principles to a consequential proposition. The lawyer may then turn to your own conduct:
Q: And you were the supervisor responsible for enforcing that procedure?
A: Yes.
Q: But you didn't enforce it on June 12, did you?
Now the earlier agreements become the standard against which your conduct is measured.
By then, the answer to the June 12 question may simply be a fact. The place to be careful was earlier, when you were agreeing to the principles.
This is the logic of a technique sometimes called the Miller Mousetrap: establish agreement with a principle before revealing how it will be applied.
Don't reject reasonable propositions simply because the lawyer might use them later. But don't agree to propositions broader than the facts justify.
Q: Every safety procedure must always be followed without exception, correct?
A: That depends on the procedure and the circumstances.
If legitimate exceptions exist, that qualification matters. The lawyer may ask what they are and who decides. Answer those questions.
Watch for shifting terminology, too. A company may have guidelines, recommendations, policies, and mandatory rules, each carrying a different level of obligation. If the distinction matters, preserve it.
The lawyer may want a universal rule. Your responsibility is to describe the actual one.
Earlier answers don't dictate later ones
An examiner may arrange questions so that one answer pressures the next.
Suppose you claim continuing pain from an injury.
Q: When did you last see a doctor about the injury?
A: About six months ago.
Q: And you're claiming you're still in significant pain?
You may feel an urge to minimize your symptoms so the two answers seem consistent. But there may be good reasons you haven't gone back. Perhaps treatment didn't help. Perhaps the doctor said there was little more to do.
The answers are not necessarily inconsistent. Don't adjust a truthful answer to make it sit comfortably next to an earlier one.
The same is true after a string of easy agreements. You may have answered yes ten times in a row. That does not mean the eleventh answer must be yes.
Two bad choices
Some questions are built so that either answer can be used against you.
Q: Did you realize an accident was about to happen?
Yes invites the question why you didn't prevent it. No invites the argument that the danger should have been obvious.
That doesn't mean you should refuse to answer. It means considering what is actually being asked. Did you recognize a general risk? Did you realize a collision was imminent? At what point?
If the question can be answered yes or no accurately, answer it. If a qualification is needed to make the answer truthful, give it.
Don't invent a third answer to escape an unfavorable fact. But don't accept a false choice either.
5. Know the Limits of What You Know
How you know something
Q: Was the employee warned about her performance?
A: Yes.
Q: Were you present when she was warned?
A: No.
Q: Then how do you know?
A: Her supervisor told me.
The record eventually shows your knowledge was secondhand. But the first answer implied otherwise. Where the distinction matters, make it at the outset:
A: Her supervisor told me he had warned her. I wasn't there.
The same applies to documents. Perhaps you read a report but did not observe the events it describes. Perhaps you learned about an incident months later. Perhaps your present understanding blends what you remember with what you reviewed to prepare.
A skilled lawyer may uncover those distinctions anyway. Don't make it easier by claiming knowledge more direct than you have.
Your memory is not a recording
Q: How many people attended the meeting?
A: I think there were about eight.
Q: Eight people?
A: Yes.
Q: Not nine?
A: I don't think so.
Q: So there were eight?
A: Yes.
The witness began with an estimate and ended with an exact number.
If you are estimating, say so. If you remember the general period but not the date, explain that. If you don't remember, say so. Don't guess because the lawyer wants a number.
But if you can make a reasonable estimate and the question calls for one, don't refuse merely because you lack perfect precision.
A: My best estimate is eight, but I don't remember the exact number.
That is an answer. If the lawyer later summarizes it as exactly eight, correct the summary.
Your memory may be accurate without being precise. Precision should not be manufactured for the convenience of the transcript.
6. Recognize the Exhaustion Sequence
One questioning sequence combines nearly everything discussed so far. It is among the most important techniques in deposition examination. It runs in five steps:
Broad question → Additional answers → Exhaustion → Summary → Commitment
Here is how it looks with an agreeable witness.
Q: Why did you terminate Mr. Smith? [BROAD QUESTION]
A: He was frequently late, he missed two project deadlines, and he'd been warned about both.
Q: Anything else? [ADDITIONAL ANSWERS]
A: His supervisor recommended it.
Q: Any other reasons? [EXHAUSTION]
A: Not that I can think of.
Q: Have we covered all of them?
A: I believe so.
Q: So the reasons were lateness, missed deadlines, and the supervisor's recommendation? [SUMMARY]
A: Yes.
Q: No other reasons?
A: Correct.
Q: Is there anything that could change that answer? [COMMITMENT]
A: No.
The witness began by describing the reasons that came to mind. The lawyer converted that into a complete list, then into a commitment that nothing could change it. If the witness later identifies another reason, the lawyer will point to every opportunity the witness had to mention it.
Here is what a careful witness does at each step.
The broad question. "Why did you terminate Mr. Smith?" calls for your reasons. Give all the reasons you know, not one or two while you wait to be asked again. A prepared witness has reviewed the relevant records and is better positioned to give an accurate, complete answer.
Additional answers. When the lawyer asks "anything else?" and something else comes to mind, say it. That is completeness, not weakness.
Exhaustion. Now the lawyer presses for whether anything more exists. This is where the distinction between present recollection and historical reality matters.
If you know the list is complete, say so plainly:
A: Yes. Those were the reasons.
You cannot manufacture uncertainty because a categorical answer is inconvenient.
But if you genuinely don't know whether other considerations played a part, because others were involved in the decision or it developed over months, say that instead:
Q: So those were the only reasons?
A: They're the only reasons I know of. Ms. Lee was also involved in the decision, and I can't speak to everything she considered.
The summary. Listen to whether the lawyer's summary is complete. In the example above, it quietly dropped the warnings.
A: Those, and the fact that he had been warned about both.
The commitment. Finally, the lawyer may ask whether anything could change your answer.
Q: Is there anyone who might remember a reason you don't?
Don't predict what you might remember after information you haven't seen. And don't hold back what you know:
A: Ms. Lee might. I don't know what she would remember.
The qualification is not a shield
There is an important caution here.
A qualified answer is still subject to impeachment. "As I sit here today" is not a magic phrase. If you later offer another reason, the lawyer can still ask why you didn't mention it when given every opportunity, and a jury may be unimpressed by the qualifier.
The qualification has value only when it is true: when you genuinely don't know whether more existed. Used to keep options open, it protects nothing and costs credibility.
Fatigue
The sequence may repeat for hours. "Anything else?" "Are you sure?" "Nothing more?"
Over time, the temptation is to surrender. "Fine. Yes. That's all of them."
That may end the exchange, but an answer given to end the questioning is still testimony under oath. Fatigue does not turn an incomplete recollection into an exhaustive one.
If you need a break, ask for one when no question is pending.
7. Difficult Is Not Combative
There is a danger in everything discussed so far. A witness may conclude that the objective is to frustrate the lawyer at every turn.
That would be a mistake.
Experienced examining lawyers have ways of dealing with witnesses who appear evasive. They repeat simple questions, break propositions into smaller parts, introduce documents, and expose inconsistencies. A witness who pretends not to understand ordinary questions eventually looks foolish or dishonest. A witness who refuses to acknowledge obvious facts loses credibility on the facts that genuinely are disputed.
Being difficult is a matter of precision and patience, not irritation.
That matters most when the lawyer repeats a question.
Q: Did you know the brakes were defective?
A: I knew the driver had reported a grinding noise.
Q: But did you know they were defective?
A: I knew about the report. I hadn't determined whether the brakes were defective.
Q: I'm asking whether you knew they were defective.
A: No. I knew about the report, but I didn't know whether the brakes were defective.
The witness has answered. The lawyer may keep asking, hoping the qualification will disappear.
Don't become irritated. Don't argue that you already answered. Listen to each question. If it is materially different, answer the new question. If it isn't, give the same answer.
Resist the urge to produce a new explanation each time. Varied versions invite the suggestion that your account keeps changing. A careful witness repeats an accurate answer without embellishment.
If the deposition is videotaped, a jury may see how you answered as well as what you said. A calm, repeated answer looks careful. A sigh or a sharp "I already answered that" looks like something else.
There is an enormous difference between these two witnesses:
The evasive witness refuses to answer a clear question because the truthful answer is unfavorable.
The difficult witness answers the question but refuses to accept an inaccurate premise, an ambiguous term, an unwarranted inference, or a degree of certainty the witness does not possess.
The first witness creates a credibility problem. The second creates work for the examiner.
8. The Admission the Facts Justify
Sometimes the damaging fact is true. Sometimes the list is complete. Sometimes the witness approved the transaction, knew about the defect, or made the mistake. An examining lawyer is entitled to ask difficult questions about uncomfortable facts, embarrassing mistakes, inconsistencies, and decisions you now regret.
You must answer them truthfully. Sometimes the truthful answer will be damaging, and the lawyer will obtain exactly the admission sought. Being a difficult witness does not mean preventing that outcome. It means refusing to supply an admission broader than the facts justify.
You are not responsible for doing that work for the questioning lawyer. You are responsible for telling the truth, completely.
The difficult witness does not volunteer unnecessary information to appear helpful. Does not hold back responsive information to appear careful. Does not guess to appear knowledgeable. Does not accept inaccurate summaries to appear agreeable. Does not abandon legitimate qualifications to appear decisive.
The difficult witness is comfortable saying no. Comfortable saying "I don't know." Comfortable acknowledging an imperfect memory and knowledge. Comfortable asking for clarification when clarification is genuinely needed. And comfortable remaining silent after answering the question.
But the difficult witness also has no need to win every exchange. She can acknowledge an unfavorable fact without defending her character, correct an inaccurate premise without arguing, and repeat an accurate answer without becoming irritated. She can admit a mistake without treating the admission as a personal defeat. Fighting an accusation can reveal how much the accusation matters to the witness. Irritation, indignation, and repeated attempts to justify an answer may appear defensive, even when the witness is telling the truth. The same correction, delivered calmly, may create a very different impression.