As I was reflecting on a day of taking depositions in a railroad accident case that Sullivan, Morgan & Chronic is currently litigating in Tennessee, I did some thinking about what techniques and practices litigators can use to conduct more effective depositions. The first thing that came to mind was listening. Listening is a key component to the art of communication and persuasion. Nevertheless, the majority of the time I observe lawyers questioning deponents, they are hardly listening at all to what the deponent is saying. They plod along, shackled to their written outline, simply waiting for the deponent to finish her answer so that they can move on to the next question on their list. While I am a big proponent of writing out deposition questions verbatim, this technique does not necessarily have to result in a breakdown of communication between the lawyer and the deponent. This is not to say that lawyers working from written outlines are the only culprits. I have also observed lawyers with no outline (something I would strongly discourage) making notes and thinking about their next line of questioning instead of listening to the deponent’s answer. Even in those cases where the lawyer does not care what answer the deponent gives, listening is crucial to effective communication with the deponent and communication with the deponent maximizes the value of the testimony.
One way for lawyers to become better listeners is active listening. Active listening is a communication technique whereby the listener provides feedback to the speaker in the form of re-stating or paraphrasing the words of the speaker, often in the form of a question. This is perfect for depositions. Active listening also encompasses non-verbal communication including body language, movement and micro-expressions, among other things. It is a rapport building technique that increases the probability that the deponent will “relate” on some level to the lawyer and thereby provide more candid, more thoughtful and more complete testimony.
Comprehension, retention and response form the foundation of active listening. All three are important to effective communication. Without comprehension as a foundation, the lawyer will not be able to listen effectively and participate through verbal and non-verbal response. Without retention, the lawyer will not be able to show real interest by accurately recalling the testimony that will be restated or paraphrased when it is the lawyer’s turn to speak. If the lawyer is not, at the very least, paying close attention to what is being said, adequate retention will not be possible. So keep your head out of your notes and look at the deponent when she is speaking. Finally, in contrast to passive listening, active listening requires interaction and response. Lawyers must always be aware of the non-verbal responses that they are giving to the deponent. The lawyer’s body language, macro-expressions and micro-expressions will give non-verbal responses to the deponent. The lawyer must be sure the signals sent are ones that foster more open communication as opposed to signals that create barriers to communication. Remember, something as simple as looking at the deponent when she is speaking is a non-verbal response. Showing interest promotes further communication. Showing disinterest, by writing or reading notes and not looking at the deponent closes down communication. It should go without saying that closing down communication is never a useful objective for a lawyer in a deposition. Paying attention to the deponent will also open up a whole new world of non-verbal responses and body language that the deponent would be communicating to the lawyer if the lawyer were just listening.
So give the technique a try next time you take a deposition. Start with the basics. Just try actually looking at the deponent and paying attention to what she is saying as a start. You may just be surprised at how much cooperation you get from the deponent and how much information she is willing to share.
If you are interested in learning more about communication, persuasion, body language and micro-expression, the following are some books I highly recommend to any trial lawyer from novice to warhorse: Words That Work by Frank Luntz, Don’t Think of an Elephant by George Lakoff, The Culture Code by Clotaire Rapaille, Negotiating With Giants by Peter Johnston, PaulEkman.com, PowerToChange.com.