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Dealing with ornery witnesses
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There are two kinds of unfriendly witnesses: one is hostile but pro-vides testimony, and the other is nice but cannot recall any details. Never expect that you will change an unfriendly witness into a friendly one during the deposition. However, always be professional toward a deponent and counsel. This approach invites others to reciprocate. Introduce yourself to the deponent's attorney. Before the deposition, ask the witness about the trip to the deposition site or the weather. If you set a friendly tone, you may be able to keep the deponent's bad mood from getting worse.

With a hostile witness, adjust your checklist to follow what the witness wants to discuss. Let the witness testify on what he or she considers important. Note the areas in your checklist that are skipped and return to them later. If the deponent is not responding or is forgetful, turn to your exhibits. Guide the deponent through the details. If you have a letter the deponent wrote (do not forget to have deponents authenticate their signatures), ask about custom and practice: Where is it filed? Do you keep copies? Why did you write this letter? Who else received a copy? Use leading questions and require the deponent to say yes or no. A hostile deponent may choose to explain. The more he or she explains, the more of a chance you have for follow-up questions. If you do not have exhibits, be prepared with broad, general questions: Who have you spoken to? Who else would know about the event? If the deponent continues to say, "I don't remember" to the simplest of questions, there is not much more you can do. Adhere to your deposition plan, covering as many issues as possible that will appear at trial to lock in the testimony.

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