By Dr. Ken Broda Bahm:
It is the classic scenario for a false confession: The suspect sits in a small room answering the same questions over and over again as the detective repeating those questions grows more and more exasperated. Finally, as the suspect has been worn down by the unvarying inquisition, or perhaps out of a misplaced desire to give what is expected, the suspect finally agrees. While it doesn’t carry quite the same pressure as a police interrogation, the repeated questions of a civil deposition can act as a miniature version of that scenario. The deposing attorney might try to ask the same question, or to cycle through nearly-identical versions of the same question, until the witness is worn down enough to crack.
Prepared witnesses should know that repetition is one of the tricks in an attorney’s toolbox. While it isn’t supposed to be allowed and should be met with the “asked and answered” objection, many deposing attorneys simply do it anyway or vary the questions just enough to admit a small difference in meaning. At a certain point, the attorney defending the deposition might say, “Enough, she has already answered that seven times. Move on!” But a well-prepared witness should be able to handle the repetition up to that point and to not be thrown off course or become more agreeable over time. In this post, I will share a few rules for witnesses to apply when faced with a deposing attorney who sounds like a broken record.
Listen Carefully and Literally
As with most self-protective strategies for the witness, the first step is to listen. And while listening, focus on the question itself and not simply the topic of the questioning. In many cases, I think that a witness will say, “He kept asking the same question,” but if you look carefully at the transcript, it was just the same subject matter with slightly different questions on that same topic. Listen carefully to the difference so you know when it is the same question, and when it is a new or slightly new angle on the same topic.
Avoid Commenting on the Repetition
It can be tempting to say, “I’ve already answered that question!” or “I will say what I said before…” But in general, I think it is a bad idea for the witness to comment on the question itself. Leave that to counsel. It is your attorney’s job to try to police the abuse of the deposing attorney. Your job as the witness is to keep patiently and honestly answering the question. If they ask it seven times, then answer seven times – consistently.
But Be Consistent
For some reason (known only to courtroom psychology researchers) the effects of repeated questions seem to have been researched mostly in the context of child witnesses. In that context, however, the research has shown that repeated questions are used very frequently (Zajac, Westera & Kaladelfos, 2018) and, that when they are used, they are more likely to lead to self-contradictions (Andrews et al., 2015). And that stands to reason: The more times you ask something, the greater the chance that the witness will begin to introduce differences into their answers and potentially contradict themselves. Most likely, that isn’t just a trait of the child witness.
And Stick to Your Guns
The most important advice is this: Don’t change your answer in order to bring it in line with what opposing counsel seems to want. Carefully think about your answer when you first hear the question. If it is a critical question, then hopefully you have discussed your answer with your own attorney. But once you have answered it well, stick with that answer, and don’t vary that answer just because the attorney taking your deposition seems to want you to change that answer. When they’re frustrated, or feigning incredulity at your continued answers, that is most likely a sign that you’re doing well, not poorly.
______
Other Posts on Witness Examination:
- Be the Director of Your Witness’s Direct Examination
- Trial Witnesses, Un-Lead the Questions
- Witnesses: Know Your Seven Ways Out of the ‘Yes or No’ Trap
______