How to Chase Down an Evasive Witness in Deposition -- The Escalating Approach
By Chad Colton, Markowitz Herbold PC
Evading a well-stated question can be a surprisingly effective tactic for a deposition witness. The maneuver often causes lawyers to abandon their questions in frustration or become distracted by the witness’s non-responsive answer. Here’s a strategic approach to ensure you can effectively handle evasive witnesses during depositions.
The Escalating Approach
When a witness fails to answer a deposition question, it’s tempting to either abandon the question or react aggressively. But abandoning the question leaves you without the information or admission you need, and being rude to the witness just shuts them down (and makes you look like a jerk). Instead, consider an escalating approach that steadily increases pressure on the witness or demonstrates their evasiveness.
1. Politely but Firmly Address the Witness’s Evasion
When the witness first evades your question, address it politely but firmly. For example, you might say, "Thank you, Mr. Jones, but I was asking about something a little different. My question was..." and then repeat your question. This polite clarification highlights the evasion and trains the witness to provide responsive answers, without overly escalating tension.
2. Respectfully Press for an Answer
If the witness continues to evade, repeat the question with a bit more firmness. Acknowledge what the witness has said but reiterate your question: "I understand what you’ve said, but my question was..." and repeat the question. At this point, you might start receiving objections from opposing counsel, such as "asked and answered." Stand your ground. If the witness hasn’t answered, continue to press the question, and don’t get distracted by opposing counsel’s side show.
3. Apply Heavy Pressure
Should the witness still evade, escalate your firmness. Clearly state that the question has not been answered: "That wasn’t my question, sir. My question was..." and repeat the question. Show the witness and opposing counsel that you’re serious about getting an answer and expect compliance.
4. Decide Whether to Use the Witness’s Evasiveness or Seek Court Intervention
If the evasiveness continues, you have two main options. The first is to let it go. If the deposition is on video (and you’ve made enough of a meal of the witness’s evasion) you may have created a video clip that can be played at trial to show that the witness should not be trusted. But if you really need an answer to the question, then consider a second option: warn the witness that you’ll be forced to seek court intervention and give them one last opportunity to answer. You may say something along the lines of, “I’ve been trying to get an answer from you about X, and you still haven’t answered my question. I want to give you one last chance, and I you won’t answer, then I’ll have to ask the judge in this case to intervene: My question was…" If the witness still doesn’t answer, get the judge on the phone or note on the record that you will file a motion and then move on (but be sure to leave the deposition open on the record).
License to be More Forceful
By following the “escalating approach” early on in the deposition, you set a clear expectation that you will not tolerate evasive answers. And once you’ve been through the drill a few times with the witness, you can often be more forceful in later lines of questioning. But be sure to maintain your temper and professional tone—which is admittedly easier said than done. The jury may not see the earlier clips of you trying to train the witness to answer questions, and you can look too aggressive.
Conclusion
Chasing down an evasive witness in a deposition requires a balanced approach of patience, firmness, and strategic escalation. By maintaining professionalism and steadily increasing pressure, you can effectively counter a witness’s evasion tactics and ensure you get the answers you need—or at least get some killer video clips for trial.
For more tips and insights on navigating high-stakes commercial disputes, stay tuned to my WYNTW videos or follow me on LinkedIn.
Chad Colton helps companies and business owners navigate high-stakes commercial litigation—when businesses, reputations and livelihoods are on the line. He often serves as parachute trial counsel, joining cases at the mid-point or on the eve of trial (sometimes literally) to develop a hard-hitting trial package. He has taken nearly 30 cases to trial across the country and served as lead counsel on some of the most high-profile commercial jury trials in the Pacific Northwest.