How Pivoting Can Lead to Bad Deposition Outcomes

CSI - Courtroom Sciences Inc


Defense attorneys must impart to their witnesses that while a case will not be won in the deposition, it can most certainly be lost there. Many witnesses don't understand the objective of deposition testimony, with far too many wanting to defend themselves or attempt to prove they did nothing wrong. However, rather than helping them succeed in the deposition, the only thing that this type of testimony actually does is open the door for additional counter-attacks from the plaintiff's attorney and, ultimately, bad deposition outcomes. 

Whether in a trial environment or a deposition, an inexperienced witness up against an experienced trial attorney is never a fair fight. In an effort to best the plaintiff’s attorney, a witness may unwisely engage in deliberately evasive maneuvers, often referred to as pivoting, causing them to appear defensive and leaving them more susceptible to an amygdala hijack. The mismatch between a witness and trial attorney becomes even more out of proportion when the witness allows their emotions to be provoked, causing a flustered witness to speed up, neglect to recognize the significance of the line of questioning, fail to separate fact from supposition, or blunder into one or more major concessions. 

Despite witness performance topping the list of causative factors for nuclear settlements and verdicts, traditional witness preparation does not prepare witnesses for how to counter neuropsychological manipulation. Courtroom Sciences provides psychology-based witness training that will allow the witness to thwart plaintiff reptile attacks, and keep them from making errors that could disproportionately impact settlement and trial outcomes.


How can my witness learn to avoid the fight or flight response?

Witnesses who lack proper cognitive and emotional skills can very quickly be baited into a fight or flight response. These witnesses often engage in irrational or inappropriate behavior, causing them to be frustrated and argumentative. A witness can learn to overcome the fight or flight response through sophisticated neuro-cognitive training. This deliberate emotional regulation strategy involves actively reinterpreting a negative stimulus as a neutral stimulus. During a trial or deposition, this strategy would enable the witness to detect an emotional threat from opposing counsel, calmly identify the threat as an attempt to bait the witness, and deliver effective testimony.


How the Pivoting Technique May Cause Witnesses to Make Errors 

Many defense witnesses wrestle with the idea of responding to a question with a simple yes or no answer, particularly when they feel a further explanation is required. Some witnesses may even be advised that by giving more than a yes or no response they are in effect taking control of the line of questioning, throwing the opposing attorney off his or her rhythm. These witnesses have been trained incorrectly to attempt to control the examination by changing the question to an opportunity to “explain” the defense theme. Originating in the political arena, this witness training method is often referred to as pivoting. 

When used during a deposition this “pivoting” tactic is at best, ineffective, and in many cases, it is more likely to cause the witness far more harm than good. While witnesses feel that by pivoting and explaining they are able to provide details that clarify their actions, this technique is inherently flawed and can easily be exposed by an experienced cross-examiner. Playing directly into opposing counsel’s hands, pivoting can make the witness look evasive, nonresponsive, argumentative, or defensive. Witnesses are also liable to offer long-winded explanations, providing too much information in response to the questions posed which will only help the plaintiff’s attorney, while creating a significant economic vulnerability for the defense.


Defend Against Bad Deposition Outcomes By Responding With the Shortest Answer Possible 

A witness who attempts to employ the pivoting technique is a strategic vulnerability during deposition. Rather than trying to avoid the actual question, and then providing a defense-oriented explanation that only serves to open himself or herself up to another series of questions, witnesses are better served by taking the “shortest answer possible” approach during the deposition. 

Defense attorneys must emphasize to their witnesses that, although they may fear providing a simple one-word answer, without additional explanation, if the honest answer is affirmative, the best strategy is simply to answer ‘yes’ and then say nothing more. The time for a well-prepared explanation, without the plaintiff’s attorney poking holes in it from the inception, is not during the deposition. Rather, that explanation and subsequent details should usually come during the defense case at trial, in a well-organized direct examination. 

Courtroom Sciences knows that there is nothing to be gained by giving a plaintiff’s attorney more than a simple response, often only one to three words, and that a defense witness who is attempting to pivot or over-explain represents a clear threat to the defense. Our psychology-based witness training program will allow a witness to be simultaneously effective while preventing them from making errors that can derail your case. Speak with one of our experts to get started. 


Key Takeaways

●  To avoid bad deposition outcomes, defense attorneys must clarify to their witnesses that while a case will not be won in the deposition, it can be lost there.

●  During depositions the tactic known as “pivoting” is ineffective at best, and is likely to cause the witness more harm than good.

●  Defense witnesses are better served by taking the “shortest answer possible” approach during the deposition. 

●  Courtroom Sciences' psychology-based witness training program will allow a witness to be effective while preventing them from making errors that can derail your case.


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