Deposing the Evasive or Argumentative Witness

From How to Prepare for, Take & Use a Deposition by Daniel P. Dain

Some witnesses will intentionally try to evade, or argue with you about, each important question. More than others, these witnesses require your patience and persistence. When the witness gives an evasive answer to your question, respond: “I do not believe you answered my question. Mr. Reporter, would you please read back my last question.” If the deponent persists in his prior answer, respond: “Let me try again. My question is ______________. Would you please answer my question.”

Make sure that your questions are narrow, simple and clear; if the witness has a legitimate basis to evade your question, opposing counsel will object when you keep repeating it. If in doubt, pause and think of a way to rephrase your question so that the witness is required to answer it fairly. To repeat, patience and persistence is the key to success; narrow specific questions will help you reach that goal.

Some witnesses may unintentionally respond in a manner that is evasive or does not suit your purposes. For example:

Q. Did you call Mr. Jones on July 29 to discuss the deal?

A. I was considering the best course of action to take and discussed it with Tom, Bill and Joe. After considering we decided there were multiple steps. Later that day I placed calls to Mr. Thompson, Mr. Jones and Mr. Smith.

In this case, the witness may be trying too hard to help you by giving you the whole story. In response, you may choose to let the witness talk, in the hope of learning something useful. Ultimately, however, your need to control the witness and may require a different approach. One way to regain control of the situation is to respond:

Q. Mr. Jones, my question was, “On July 29 did you contact Mr. Jones to discuss the deal?” Can you answer that question yes or no?
If he says yes, ask him to do so. If he answers no, ask him why he cannot answer yes or no, and follow up.

Do not give up on this kind of witness. Continue to ask the same or a revised question calling for the same information. Be sure that your questions are narrow and call for short and obvious answers. If the witness continues to answer in a nonresponsive manner, move to strike the answer as being nonresponsive. Once the witness finally realizes he can’t get away with his evasions and that he is needlessly prolonging the deposition, he will usually begin to respond properly. If he persists in being evasive or nonresponsive, your last option is to warn the witness that he must answer your questions in accordance with the rules of court and advise him that if he persists, you will have no choice but to ask the judge to order him to answer and assess costs. If the witness still refuses to answer responsively, consider recessing the deposition and moving for an order compelling responses. Try to end your examination on a particularly egregious evasion so that you can show it to the judge.

An argumentative witness will often try to anticipate where you are going with each question and defeat your objective. He will quibble with small details and try to evade when he cannot quibble. He should be treated like the evasive witness. Repeat your question or modify it to eliminate the objectionable detail. If he claims he doesn’t understand your terms, either define them or ask him to define them and then repeat the question. Eventually, he will break down and answer. If necessary, use the pinning techniques to make sure you have answers that can be used to impeach at trial.

Some argumentative witnesses will try to avoid answering yes to questions, even though they should be admitted. One tactic is to phrase your questions so that the desired answer is no. By doing so, you may lead him into some valuable admissions. For example, if you want to establish that the deponent contacted Mr. Smith before calling Mr. Jones, you could ask the question in at least two ways:

Q. Isn’t it true that you called Mr. Smith before you called Mr. Jones?

As an alternative, you could ask it in this way:

Q. Isn’t it true that you called Mr. Jones before you called Mr. Smith?

In some cases, the conduct of an argumentative witness might extend beyond refusal to answer questions or quibbling with their form, and enter into insulting and hostile behavior. For instance, in GMAC Bank v. HTFC Corp., 248 F.R.D. 182 (E.D. Pa. 2008), the defendant CEO deponent used vulgar remarks, insults, and evasive answers for almost 75% of the deposition. Upon a motion to compel deposition testimony and for the imposition of sanctions, the court found this behavior reprehensible and awarded almost $30,000 in sanctions to the plaintiff. Of further note, the deponent’s lawyer was jointly and severally sanctioned for not restraining the deponent’s actions. The attorney’s silence equated to a tacit endorsement and ratification of deponent’s behavior. As the court stated:

It is true that an attorney can be blindsided by a recalcitrant client who engages in unexpected sanctionable conduct at a deposition. An attorney faced with such a client cannot, however, simply sit back, allow the deposition to proceed, and then blame the client when the deposition process breaks down.

Id. at 195.

If you encounter such behavior, maintain your professionalism and continue to respectfully seek answers to your questions. Use the above tactics of rephrasing and definition to ensure the deponent can understand and easily answer the question. Finally, consider terminating the deposition if the deponent is obstructive, rude or profane and move to compel answers and, where appropriate, for the imposition of sanctions.

Daniel P. Dain, author of How to Prepare for, Take & Use a Deposition is a founder and the Managing Partner of Brennan, Dain, Le Ray, Wiest, Torpy & Garner in Boston, Massachusetts. Mr. Dain is a trial lawyer focusing his practice on representing real estate developers and property owners in litigation and administrative matters. He also maintains a commercial litigation practice and has represented clients in insurance coverage disputes. Mr. Dain was formerly Senior Counsel for Real Estate and Land Use Litigation at Goodwin Procter, LLP. Mr. Dain is also a former Special Assistant District Attorney in Middlesex County, Massachusetts.

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