Episode #40 – Deposition Testimony

In this episode, Courtroom Sciences’ Senior Vice President of Litigation Psychology, Dr. Bill Kanasky discusses the goals of deposition testimony, while addressing the issues with “pivoting” and why its such a poor strategy. Dr. Kanasky also shares examples of poor deposition testimony along with examples of great testimony to highlight the differences and how to achieve them.

Full Episode Transcript

[0:05] Bill Welcome again to the Litigation Psychology Podcast. This is Dr. Bill Kanasky, and this podcast is brought to you by Courtroom Sciences. And today I want to talk a little bit about deposition testimony and, uh, many witnesses don’t understand the objective of deposition testimony. We are not going to trial; there is no jury at the deposition, there is no judge. Yet witnesses want to defend themselves; they want to prove they did nothing wrong. And the only thing that does is it opens up more doors for counter-attack for plaintiff’s counsel.

[0:40] Bill So deposition, really, rather than trying to win a deposition—which, by the way, impossible—is you want to survive a deposition. Survive and advance, like they say in March Madness, right? You got to keep your head above water and just get to the other side. That is the name of the game. It’s walking across a minefield without stepping on a landmine. However, many witnesses try to win the deposition thinking, “If I give these brilliant, long, elaborate explanations, this plaintiff attorney is going to let me out of the case.” Does not happen. So basically, and on simple yes or no questions, many witnesses go with the “Yeah, but…” “No, because…” Unfortunately, some of the witnesses are actually told to do that. Really bad idea. Okay, I’m going to show you why it’s such a bad idea.

[1:31] Bill So let me share my screen with you and we are going to look at a video deposition of—this guy’s a surgeon, right? And he is going to be asked a very simple yes/no question that he doesn’t like. This question, he’s threatened by the answer. So watch what he does in deposition.

[1:57] Video “And the vascular injuries that have occurred because of the use of the Veress needle, I’m assuming that’s because the needle has actually punctured in some fashion or damaged the vascular structure with entry?”

“That’s typically how that happens, yes.”

“Okay. Would, because of the size of the Veress needle versus the size of the Visiport trocar, would you agree with me that typically those injuries have been found to be smaller to the vascular structures compared to what you would see with the Visiport trocar?”

 “Objection to form and foundation. You may the answer.”

[2:31] Bill Yes or no?

[2:33] Video “Typically, I wouldn’t say that that’s the case. The—the downside of the Veress needle is that it’s very thin, and its single point of fixation is the fascia, so it creates a fulcrum around which the needle can spin around and twist and turn. And that spinning and twisting motion that inevitably happens after you’ve inserted into the abdomen can really tear open a pretty big hole into an artery or vein. So bleeding can be just as aggressive and just as dangerous with Veress entry as it can with Visiport or even a Hasson technique. And some surgeons have used the Veress needle as their point of entry to insufflate the abdomen—they’re insufflating into a vessel, and maybe not fully to create an embolism, but enough to, you know, continue that, uh, structure to bleed. And then they follow with another trocar, and then that has led to even further damage because they’re following the same track that that Veress needle has gone through. So Veress is, uh, based on the literature, just as dangerous as any other entry technique. And that’s really the important point here is that all these techniques have complications and risks.”

[3:42] Bill What are you doing? What are you doing? You’re trying to win. You’re trying to convince the plaintiff attorney you did nothing wrong. That was a two-minute answer which could have been answered—ready for this, my rule, the five-second rule. You can answer any question within five seconds. And by the way, the answer to this question was: “No, there is no difference.” That was the answer. But this guy’s trying to win. Unfortunately, I think he was actually told to do this, but that’s a terrible, terrible answer. That’s going to lead to an hour more of follow-up questions based on everything that he just said.

[4:16] Bill So they played this deposition at trial, okay? And he failed to agree with basic, basic yes/no questions on cross which—this “Yeah, but,” “Yeah, but,” “Yeah, but,” “No, because,” “No, because”—it’s a horrendous, horrendous methodology of answering questions, which is called pivoting. This is what politicians do, and no one can stand politicians because they can’t answer a damn question. And when you pivot, you come across like a politician. You look evasive, you look defensive, and sometimes even argumentative. It’s weak, weak, weak. And by the way, we’ve tested this scientifically; jurors can’t stand it.

[4:55] Bill So what happens with this guy? Big difference between—he’s defending his conduct. Embrace your conduct. I train witnesses to embrace their conduct. “Yes, that’s what I did. That’s exactly what I did.” Not “Yeah, but” and start defending. Jurors don’t like it. It doesn’t work. And so what happened was he got hit for 1.5 million dollars. But let’s go to—let’s go to Brad Pitt. He knows exactly what he’s doing.

[5:20] Video “Okay, I ask you a question, you have to think of the answer. Where do you look? No good. You look down, they know you’re lying; and up, they know you don’t know the truth. Don’t use seven words when four will do.”

[5:32] Bill Don’t use seven words when four will do. Okay? It’s not necessary. It’s a deposition. There’s no jury there. You can’t win the deposition. So save all your beautiful, elaborate teaching moments for the jury at trial.

[5:46] Bill Like our hero, this guy, keeping it simple:

[5:52] Video “In spite of the fact that there was no FDA requirement to conduct post-market studies, are you aware of whether or not Wright Medical was conducting an internal study of success or failure with the hip stem that you designed?”

“I do not know.”

“Did Wright Medical, as part of the design and development of the stem that you participated in, require that you report outcomes?”

“No.”

[6:28] Bill See, that’s my guy. Keeping it simple, right? Not opening up other doors. Answering the damn question. Appearing very professional, confident, and comfortable.

[6:39] Bill And you get through this deposition. All these great, elaborate teaching examples, these—these explanations that you’re dying to give are not appropriate for deposition. So if anybody out there—if someone tells you to pivot away from the question and start explaining, right, or to force in an explanation, or even worse, try to win the deposition, they’re absolutely out of their minds and they need to be checked out by probably a healthcare professional. Because that will lead to disaster in every deposition, and then you’re going to do the same thing at trial; you’re going to be in trouble. Keep it simple, answer the question. Survival of the fittest. Survive and advance. You get through the deposition, save all the good stuff for trial. Thank you so much. Another version here of the Litigation Psychology Podcast.