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For trial lawyers, difficult witnesses are inevitable. But they’re not all the same. Some will have unhelpful versions of the facts. Others will be evasive by design or by nature. Some will even be hostile to you, your client or your case. While each type of difficult witness presents its own challenges, counsel can successfully cope with each by using simple techniques. The resulting deposition transcript will provide a solid foundation for dealing with witnesses at trial. First, adopt a calm, professional demeanor. It is generally inadvisable for counsel to become combative with witnesses. It is difficult to maintain intellectual control of the subject and direction of the deposition if one’s emotions are provoked and engaged. Most attorneys are unable to maintain objectivity when they become upset. Through anger or irritation with the witness, counsel may end up missing crucial details. Second, even if counsel does score some points in a vigorous debate with the witness, thanks to the hostile colloquy in which the statements were made, reading such a transcript before the jury will reflect badly on counsel, thereby losing any benefit gained. Third, a combative examiner often creates a hostile atmosphere that increases the adversity of the witness. By putting a witness on the defensive, counsel will likely stimulate answers that are less informative, less complete and, ultimately, less advantageous than a more subtle approach. Generally, no matter how hostile the witness, one completes a better deposition with a calm, professional demeanor and respectful questioning than with the contrary. On the other hand, there are some witnesses with whom a more aggressive approach may be effective, but this can be done without raising one’s voice or becoming angry. Simple, calm and focused questions in deposition can wreck greater havoc with an opponent’s case than a roomful of invective.

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