Posted by wlansden |
Filed under tips, trials, depositions
By Eileen Burkhalter Smith
I have been thinking a lot lately about deposition strategy and techniques. In a recent jury trial, a couple of deposition techniques (done by others) really stood out to me.
First, I have always wondered why people say “strike that” when re-starting a question during a deposition. I have never seen a transcript that actually omitted the previous question (more accurately, I suppose, I have always seen that phrase included along with the offending question). So, what’s the point? We all know that once you get in the habit of saying something to re-start a question, it will happen without your control. In any event, in my recent trial, five video depositions were shown to the jury. It was remarkable to me, how often “strike that” was said in these depositions (taken by different lawyers on both sides). I think it really muddied the playing of the deposition, and it added one more “technical” term to an already technical trial. Certainly, a jury understands the colloquial use of the phrase “strike that,” but I wonder if hearing it repeatedly distracted them even for a moment from the substantive testimony?
Second, I was surprised how effective it was when the “taking” lawyer said “explain to the jury, what that means” or “show the jury on your exhibit….” Again, that is one of those tactics that always makes me chuckle during the deposition when the jury isn’t there. But, I think it is really effective when actually played to a jury. In my recent trial, a couple of the depositions were taken years ago—some over five years—but by using that phrase, it almost seemed as if the witness was testifying live. Which, I guess, is the point.
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