There isn’t a trial attorney around who hasn’t encountered a hostile witness. By “hostile,” I don’t just mean “adverse” — I mean openly HOSTILE. Like the witness who can’t wait to get into the ring and go a few rounds with you. In fact, we could call this witness the “fighting witness” – since that’s really what this is — a witness who wants to brawl with you on the record.
When I train attorneys across the country on deposition techniques, the problem of the hostile witness at deposition is often a subject of discussion. When confronted with serious and open hostility by a witness, most attorneys respond by acting out as well, or by asserting a level of alpha dominance designed to shut down the witness so the attorney can get back to a lengthy list of deposition questions on their full-day agenda. Neither of these strategies really work. And indeed, they may actually be detrimental.
Here, then, are some of my very best strategies for dealing with the fighting or hostile witness:
5 Strategies for the Hostile Witness at Deposition
- Let the Hostility Out. When a witness tries to fight during a deposition, most lawyers have a tendency to try to shut that down. Don’t do it. You’re missing out on capitalizing on the hostile witness at their most vulnerable. Yes — VULNERABLE. Because, you see, if the witness is hell-bent on fighting with you, yelling at you, telling you off, trash talking your client, etc., the witness lacks the restraint to avoid making mistakes at the deposition and may give you some of your best testimony. And, it will become quickly apparent to your opposing counsel (who instructed the witness prior to the deposition in all manner of self-restraint, no doubt), that the witness is a danger to your opponent at trial.
- Find Opportunities to Explore the Source of Hostility — but Not Right Away. When you are faced with an obviously hostile witness, it makes sense to explore the source of the hostility. You can question the hostile witness about bias, or challenge the degree to which the witness is hostile toward our client. But, don’t explore these subjects right away. Why not? Because in doing so, you turn the hostile witness inward. You are forcing the hostile witness to come to grips, in some form, with their hostility. And by taking that route, you may inadvertently decrease the hostility along with the important vulnerability. Postpone any attempt to point out bias or unreasonableness until after you have gotten your most important testimony.
- Think About How to Adjust Your Rhythm to Capitalize on the Hostile Witness. Every hostile witness has a speaking rhythm. As you see evidence of the hostility, think about your speaking rhythm and whether you should make adjustments to maximize the value of the hostility. For instance, suppose the witness is inclined to blurt out unreasonable declarative sentences. You may want to match the rhythm with shorter staccato sentences. If the witness speaks in a more refined and elegant way, with barbs at the end, you might want to lengthen your sentences to match that rhythm accordingly — complete with the challenge to the witness at the end of the sentence. The matching of rhythmic styles may allow you to escalate the witness’ feelings of hostility — and their vulnerability.
- “You” is the Magic Word. When confronted with a hostile witness, incorporate “you” in as many questions or responses to the witness as you can. Rather than saying “There’s no proof of that,” say “You’ve no proof of that.” The “you” is a further challenge to the witness’ ego, and will invariably lead to better information for you.
- Never Spar with the Hostile Witness Based on Your Own Ego. Instead, Spar to Reveal. In my view this is the most important rule over all. Most trial lawyers I know hate getting challenged at a deposition. If the witness, fights with us, we sometimes want to fight back. But, never spar based on ego — only spar to reveal information. It might be a good admission, or bias, or the fact that the opposing side’s witness is unsuitable for trial. If you spar based on ego, then your ego will come across in the transcript — and that does you no good. Test every action you take at the deposition against this rule.
Hostile witnesses are no fun. When you encounter them, remain strategic — and make sure that your interactions with the witness are deliberate, and designed to advance your client’s goals.
Hope this helps.