Image: Paul Lavelle/Creative Commons

I've come to learn that even after more than 18 years of practice, things crop up in what should be hum-drum, ordinary situations that can completely shock you. 

What "Normally" Happens

Before almost any witness steps in to the room to be questioned at a deposition, his attorney (assuming he has retained counsel) will spend some time preparing him for the questions he will likely be asked, and, since we, as attorneys, can't possibly anticipate every single question that will be asked by the other side, will also give the witness some general guidelines to follow in terms of framing his answers to those questions.

For purposes of this story, I'm going to focus on the latter category - the general overview/instructions, and we'll start with the top three (3), which, for the most part, should be self-evident:

(1) Tell the truth. (Duh.) 

(2)  Make sure you only answer the specific question that is being asked 

(a) As a corollary to that rule, don't volunteer information.

(3) If you are asked a straightforward question, answer it.

How One of My Clients Went Completely Off the Rails at His Deposition

A few years back, I represented a non-party witness in a fraud case whose entire deposition was centered around whether he in fact signed a document or not. Based on the instructions I had given him, I expected him to answer the question as to whether that was, in fact, his signature with a straight yes or no. It was, after all, a simple yes or no question, and he had assured me repeatedly that he had no fear of coming out and telling the truth.

So, you would think, when asked "Is that your signature?", it should have led to a simple "Yes" or "No," right?

Not so much.

Instead, what he answered actually shocked me:

"I don't see any reason why that shouldn't be my signature; maybe it is, or maybe it isn't, but I can't swear to it."

Here's the problem with an answer like that: the witness loses any credibility or likeability he might have otherwise had.

Jonathan Cooper
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Non-Compete, Trade Secret, Unfair Competition and School Negligence Lawyer
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