Super Lawyers
William C. Altreuter

Thursday, September 02, 2004

Interesting deposition war story from The Uncivil Litigator. When I teach my class on Discovery I always mention that deps are as much about sizing up the witness, and getting into the witnesses head as they are about actually getting information; UCL makes the excellent point that this is also true about the other lawyers in the room. Because my students, all upper classmen, mostly know each other better than I know them, I have always evaluated what they are doing, but forgotten to tell them that they should be doing the same thing. I'll remember this year.

UCL also makes a point about body language that I like. Messing with people's personal space is something that can be effective-- like a hockey game, there are times when a deposition can involve blocking out the space your adversary wants to work in. There are also times when reading body language is like a gambler's "tell"-- I remember one case where plaintiff's counsel spent the exam of his client with his arms crossed and his body turned away from the witness for nearly the whole time we were questioning. It was plain that he found his client loathsome, and that he didn't really buy the story, and we knew walking out what we were going to be able to do with the case.

Finally, I am reminded of a story my friend and team captain tells about a deposition he took once where he repeatedly broadly and openly winked at the adverse witness as he was questioning him, utterly unnerving his less experienced opponent. "Stop that," the guy kept saying. "Stop what?" he'd reply--*wink, wink*.

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