Tip the Scales

The After Lunch Special

At the beginning of every deposition, the witness hears an admonition, warning them that their testimony has the same weight and effect as if it were given in court, despite the informal setting.  Generally a witness (especially a plaintiff) will be on his or her best behavior for the first couple of hours, but as time goes on the mask eventually begins to slip.

I’ve sat through countless depositions where a witness gives careful, concise and calculated answers in the morning, but returns from lunch a loose-tongued wrecking ball spilling colorful narratives and punching holes in their case at every turn.  There are a number of possible explanations for this.  The medication they took with lunch may have kicked in and made the whole experience seem delightful.  They could have eaten a large meal and become lethargic. Add to that a warm and stuffy conference room and you’ve got yourself one delirious witness.  Sometimes the ‘hot seat’ cools down after a lengthy lunch break and the witness feels comfortable in what is now a familiar environment. Confident in his or her performance up to this point, a witness may become much more candid even when a camera is present!   When the video is played for a jury, and the witness is slouched over, grinning, admitting that the pain isn’t so bad after all, what is their attorney going to say? ‘Your honor, my client had eaten a turkey sandwich and was not able to take a nap at the time of this question…’

Taking a lunch break during a long deposition is risky because it gives counsel the opportunity to do some extensive coaching.  However, you cannot easily coach someone’s demeanor, posture, or reaction to stimulating question.  When taking the deposition of a key witness, I think its always prudent to save an antagonizing line of questioning for after the lunch break because you just might get the answers you are looking for.

-Douglas Stevens

VP of Operations