Dealing With Greased Pigs and other Similar Witnesses

I welcoming myself back to my blog.  After a long hiatus during which I was very very busy, I just didn't have time to post.  But now, even though I am still very very busy, I am told that I should start posting again.  So here goes.

What should you do when you are confronted with what I will call the greased pig witness at a deposition?

The greased pig is someone who answers your questions with slime.  By that I mean, if you ask a question you never get an answer.  You get something else that may touch on the subject matter but is not responsive or the witness acts as if they are answering your question but it is actually a filibuster answer that is non-responsive and you have just wasted five minutes of your seven hours listening to an artful dodge.

These are not easy depositions.  Witnesses who can pull this off are rare.  Some can do it for a while but don't have the ability to keep it up for hours on end.  But there are some witnesses who are skilled at question avoidance [it is a skill that can rarely be taught by mere coaching from opposing counsel - it, like hops in basketball and fast guitar playing, is a natural skill - if one can call obstructing justice a skill].

So other than jumping across the table - after a few hours of this stuff - and grabbing the witness by the scruff of neck ,what should you do?

What you need to do is quite simple although quite tiring and requires patient persistence. You have to preserve your record for purposes of seeking sanctions and getting to take the deposition again, perhaps before a Magistrate or the Court. In the process you may also wear the witness down and in any event you will still be doing what you need to do at a deposition - persisting in finding out what the witness will say at trial.

So what do you do?  After you see that there is a pattern of non-responsive answers, I would begin stating after each such answer something to this effect - "Mr. or Ms. Witness, that is not responsive to my question, I will have the court reporter read the question back and could you please answer the question as asked" or something like that (1) makes clear on the record that you believe that the answer was non-responsive and (2) that the question be asked again.

Keep on doing it until you get an answer that is responsive.  Yes, it will take time but it is worth it.  First, you get your answers and second you are making a record of tolerance and at the same time notifying the witness and their counsel of the non-responsive pattern.

Sure, opposing counsel will come back with the knee jerk response "The answers are responsive you just don't like what they are....yada yada yada"  Don't argue with them, just go on and repeat the process.  After the process has been repeated three or four times, I would then state to counsel the following: (1) the witness is displaying a pattern of non-responsive answers, (2) that you are going to take a five minute break during which time counsel can, if he or she so chooses, admonish the witness to answer the questions as answered and (3) that if the conduct conduct continues after the break you will either terminate the deposition and seek sanctions or you will continue to the end of the day and seek sanctions thereafter.

Counsel will respond with the same yada yada.  Let them say whatever they want. After they are done, say that you do not intend to argue about this, that you have made your record and it is now time for a break.

If, after the break, the conduct continues, then keep on plodding away and keep making your record.  Depending on how egregious is the conduct will dictate how much if any sanctions you can get.  It is your judgment call as to whether you terminate the deposition on the spot - my recommendation is to do this only when the conduct is bordering on the absurd.

When I have confronted these sorts of witnesses, and it happens, and I have taken the above tack, the better counsel have gotten their witnesses back in tow.  Those that don't are usually the ones that you can eat alive at trial.  Why?  Because these counsel need to hide behind discovery abuses rather than letting their case's story come out.

So take some succor in all of this.  If this happens at trial, the witness will be skewered by most judges after about two or three times.  If the witness knows nothing else other than slime - which is the case in many instances [you can take the boy out of the country buy you can't take the country out of the boy sort of thing]- then you are going to be the winner in the end.

Just keep the faith and be persistent.

Comments

[Zach Kitts]

The return of this blog is the best news from the legal blogosphere I have heard in quite a while.

[John Francis]

First time reading this blog and I'm amazed by the insights that you are sharing here. I hope you get caught up soon so that we can look forward to more quality posts.

[wrapping machine]

Love your blog very much, and realy missed your posts. wish you all the best.