Anticipating the Different Styles of Opposing Lawyers During Expert Testimony – Part 2 of 3
Some attorneys come across as unbelievably friendly; this kind of ‘buddy’ may even be friendly outside of the legal setting. But remember that litigation is an adversarial process. An opposing attorney in this setting wants you to help him. He may use techniques to trick or trap you to get information from you that will help his case. Being a buddy can simply be one of those subtle traps to encourage you to provide helpful testimony.
The initial reason for friendly questioning is to encourage you to become looser in your answers. The tone of voice may encourage you to expand on your answer or to ramble on beyond what the question alone required.
The lawyer may nod his head repeatedly to make it seem as if he agrees with whatever you are saying. Head nodding is a technique to keep you talking, just as you would if a friend were nodding encouragingly while you were chatting in a social setting. Without saying a single additional word, he may raise his eyebrows to encourage you to elaborate further. He may just smile at you, and pause after you have answered. He is hoping that you will fill that void by saying more.
Answer questions as simply as possible! Stop as soon as you answer the question. Do not respond to any buddy techniques by saying anything further. Wait for the next question.
In martial arts, it is easier to be the aggressor. You know what punch or kick you plan to throw and you can throw as many as you want whenever you want, aiming wherever you want. Martial artists know that a good defense will not necessarily keep you from being hit eventually. Some attorneys who can be characterized as ‘fighters’ will attack almost everything you say. They may dispute an answer. They may challenge you to give explanations, definitions, and clarifications. They may sound hostile. They may shake their head to express disapproval or disagreement with what you have said. In its own way, this technique encourages you to elaborate or further describe yourself.
The fighter might also use the rapid-fire questioning technique for the same reason as the Intimidator. If this forces you to speak before you think, you will be likely to make mistakes to his benefit. So, slow down.
The best counter to rapid-fire questions is to slow your responses down in a slightly but not demonstrably exaggerated way. If you do not know the answer to a question, you should simply say: “I don’t know.” If you just cannot recall information, you can simply say: “I don’t remember.” If you know where the answer lies, you can ask to see a on point document that has now been put into evidence. This might be enough to refresh your memory. Don’t be surprised to hear questions whose answers you may not immediately remember or even know.
A lawyer in one of my videotaped depositions was this sort of attacking questioner. He frequently leaned across the table at me with questions and physical attempts to intimidate me, while staying just beyond camera range so it was not obvious what he was doing. You can react to this sort of attorney in a couple of ways. initial, you can simply respond with civility, cordiality, and politeness, regardless of what you are thinking inside. Just stay calm and keep your eyes on the camera. The judge and jury may later view excerpts introduced from the videotape of your deposition. Looking straight at the camera will make it appear as if you are looking them straight in the eyes, which will come across as more believable.
You can also defuse the pressure a bit by asking for a break in the proceedings. And, your own lawyer may object to the opposing lawyer’s actions or tone of voice. Whatever you do, though, maintain your calm and your composure, and ignore the efforts to disrupt your thinking and your presence.
The night before questioning, get a wonderful night’s sleep. During a day of questioning, do not have a large lunch and do not drink wine or beer, either of which can account for slower thinking and faster fatiguing.