Every trial lawyer has taken a deposition of a witness who talks too much.
Sometimes the witness supplies additional irrelevant details. Or answers indirectly where a direct response would be more desirable. And adds their opinion when it wasn’t requested. Or tells you what they think you are trying to get out of them, even if your question was about something different. Or sorts out their thoughts and reflects on alternative answers out loud on the record — while all the time your court reporter is busily typing away, your deposition costs are increasing, your time is disappearing, your client is getting frustrated, you are getting frustrated and on and on and on and on.
I spend a lot of time preparing and delivering workshops on Advanced Deposition Skills. And by a large margin, one of the questions I am asked more than any others, is how to handle a too-talkative witness.
Here are the 4 most common types of witnesses who talk too much:
- People Pleasers
- Unfocused Talkers
- Intimidated Talkers
- Agenda Advancers
These 4 types of talkative witnesses should be handled differently. Handling them efficiently greatly increases your chances for a winning deposition.
A “People Pleaser” is a witness who talks a lot and adds irrelevant detail because the witness believes generally that the additional details they are supplying will be helpful to you. They provide additional background and context around an answer. If you’ve asked “Who?”, they’ll tell you “When” and “What Who was Wearing and Saying and Doing.” They sometimes think you won’t understand the answer without the additional background.
People Pleasers are witnesses who are aiming to satisfy what they think is your need for detail. The deposition makes them feel important to the legal process and to you. When deposing a People Pleaser, you want to gently focus them on what you need, without killing their desire to be helpful.
Sometimes their additional details can be helpful. Don’t let a knee-jerk reaction that they are talking too much lead you to shut them down. When you believe you have a People Pleaser across the table, and they begin to supply too much detail, be patient. Don’t interrupt them to get back to your agenda. Instead, let them know you appreciate their efforts to add more detail. Then tell them that you’d like them to assist you by focusing down on a particular area of their answer.
If a People Pleaser continues to supply too much detail, here is another way to question them: Before you ask a pointed question, ask the witness to tell you everything they remember about a particular moment. Then ask the specific question (even if it repeats some of the information you’ve been given) which you require for your motion-oriented, or trial-oriented sound bite. Because the witness has already spoken somewhat expansively, they are unlikely to do so again in the lead up to the important answer you seek.
You: Tell me everything you remember about the meeting when the change to the sales commissions was announced.
Witness: I remember we had it on a Tuesday. I know this because I always talk my daughter to daycare on Tuesdays, and I had just dropped her off. Our team, Mike, Holly, Amanda and I were in the meeting with the President, the VP and someone from HR. The President announced the change to the commission structure and said that only the commissions were affected, but not the bonuses. We were pretty shocked because we expected no change in commissions, only reduced bonuses.
You: So, on August 10th, The President told you that there would be no change in your bonuses?
Witness: That’s what he said.
“Tell me everything” is a great way to briefly indulge a People Pleaser’s desire to help you, before you get to what you want–the important piece of information.
What about those witnesses who talk too much because they can’t focus on what you are asking?
Sometimes they are unable to focus because your questions are too lengthy or complicated. If you think that might be the case, make an effort to ask shorter questions.
If you have to include a lot of words in your question, put the purpose of the question at the end. In the battle between primacy and recency, recency almost always prevails. So include the portion of the question you want remembered most at the end. For example:
Don’t ask this:
Who was at the meeting on the day that the President of the Corporation changed the policy about sales commissions?
Instead ask this:
On the day that the President of the Corporation changed the policy about sales commissions, WHO was at that meeting?
An even better suggestion is to break the question up. Lay the foundation for the question first, followed by the question:
You: Let’s talk about the day that President of the Corporation changed the policy about sales commissions, okay?
You: Who was at the meeting?
With an unfocused talker you may need to help them focus on the foundation of the question you’ll be asking first. Like this:
You: Now Ms. Smith, let’s go back to the day of the meeting where the change to the commissions was announced, okay?
You: I’d like you to think about that meeting in your mind. Thinking back on the meeting and trying to remember the details. Details like who was in the meeting, what was said, who said what, etc. That’s what I would like you to think about, okay?
You: Let’s take these details little by little. Let’s start with who was there. Who was at the meeting?
Witness: Mike, Holly, Amanda and I were there. And some people from corporate.
By introducing the foundation in steps, and helping the witness focus, you are more likely to get a focused answer to the important questions — rather than an answer where the witness is rambling and audibly working out the focus and details on the record.
Intimidated talkers add too much detail out of nervousness. They may be intimidated by you, or the legal system. They could be intimidated because they have sworn an oath and were cautioned by friends not to hold anything back or they could go to prison. They might be intimidated by your writing down in front of them on a pad of paper whatever they say.
Building rapport with people intimidated in the deposition will eliminate a lot of nervous talking. Here are some intimidation breakers:
- Make sure the witness understands the surroundings, including location of restrooms, snacks, and local restaurants for lunch breaks
- Introduce the witness to the court reporter and ask the court reporter to show the witness the steno machine
- Ask the witness: “How’s the deposition going for you so far?” and engage in some discussion on the record about how it’s a challenging exercise but the witness is doing great so far
- When you withdraw the question, tell the witness you’re withdrawing it because you didn’t ask a clear/good question. Your willingness to take responsibility for a badly worded question is a excellent way to cut back on the intimidation factor.
You can probably think of additional ways to make an intimidated witness be more at ease. By doing so, you’ll reduce the chance of the intimidation turning into lengthy and unfocused answers.
Agenda Advancers are those witnesses who purposely incorporate additional details into their testimony because they are on a mission to advance an agenda. Typically, Agenda Advancers are parties, or see themselves closely affiliated with parties.
One way to spot an Agenda Advancer — and distinguish them from other types of talkative witnesses — is that when they testify about things irrelevant to the specific question you asked, that testimony always is designed to hurt your case, or advance your opponent’s. And whereas People Pleasers, Unfocused Talkers or Intimidated Talkers add detail typically having a stream-of-consciousness feel, an Agenda Advancer will often transitions more clumsily, signaling to you that they are going to move to the part of the subject THEY feel strongly about.
You: Mr. H.R. Representative, tell me about the meeting on the day the change to the commission policy was announced. Who attended ?
Witness: The sales team, The President, the VP and myself. I’d like to add that we’ve never been sued before and have always treated employees fairly.
When you hear those awkward transitions to testimony designed to help your opponent, or think you have an Agenda Advancer, it’s useful to point this out to them. Some Agenda Advancers think that they have cleverly outdone you by saying something on the record that was part of their mission — even though you were asking about something different. When you call them out, they know that they have been detected:
You: Mr. H.R. Representative, I just asked you who attended, and then you went on to tell me that your company has never been sued and that you treat employees fairly. That wasn’t part of my question. Why did you add that detail?
Rather than telling the witness to answer only your question, challenge the Agenda Advancer. You may be able to expose them as an unreliable or especially biased witness. Even better, if you are able to transition to questions that impeach the Agenda Advancer, you have an opportunity to neutralize them for trial.
Once you transition to challenging them on their testimony or unmasking them, they may not want to continue advancing the agenda when not related to your questions. Ultimately, even if their testimony is damaging, you’ll want to learn it at the deposition, rather than trial.
Talkative witnesses test your skill as an attorney. When you depose a People Pleaser, Unfocused Talker, or Intimidated Talker, try engaging the witness rather than shutting them down. You may uncover additional important information by letting the details flow. And, you’ll preserve your communication rapport with the witness. With an Agenda Advancer, you’ll unmask them, and control better the flow of testimony into your deposition.
Manage them all and you stand a better chance of eliminating the irrelevant details in testimony so you can get to the point you want.
I have an agenda-advancer. “All over the place” is an understatement. Now multiple sessions of a depo. I was contemplating the possibility of relief in the form of costs/sanctions against the witness/party? At the very least, punitively, to share in my costs of paying my court reporter/translator to capture all of her ramblings that won’t cease.
I’m not sure you’ll be successful. I know it’s frustrating, but I think it’s best just to keep the focus narrow. Some witnesses are more difficult than others. An occupational hazard. Thanks for your comment, David.