Starting Depositions Strategically: What Research Says About Opposing Counsel's Tactics
Depositions are pivotal moments in the trajectory of a case. Although they may appear simple, depositions are difficult to do well and nearly impossible for witnesses to execute perfectly. What is often overlooked is how the beginning of a deposition sets the stage for everything that follows.
The start of a deposition can have a material impact on the effectiveness of a witness’s performance. Examining the subtle tactics employed by opposing counsel and the neurocognitive processes involved helps witnesses and attorneys more effectively navigate these critical proceedings.
What's so important about how a deposition starts?
Establishing control over the witness at the start of a deposition is a common tactic practiced by plaintiff attorneys. Using non-threatening, friendly, and conversational questions at the outset of the deposition eases the witness into the process, making them feel comfortable and lowering their defenses. Remember – this "warm-up" phase is a strategic setup to assess the witness and subtly guide them into a pattern of relaxed communication, which can make them more vulnerable to careless mistakes later in the deposition. The key is maintaining control and not letting the witness slip into autopilot mode.
The Psychology of the Deposition Start
When a witness walks into the deposition room, their brain is inundated with stimuli. The unfamiliar setting, a conference room perhaps filled with strangers, a court reporter, and perhaps a videographer, can be overwhelming and lead to stress and nervousness.
To counter this effect, defense attorneys often spend countless hours preparing their witnesses. However, even the best preparation might go awry if witnesses are ill-prepared to deal with the strategic approach the opposing counsel has planned for the beginning of the deposition.
The Two Types of Deposition Openings: Sugar and Vinegar
Depositions begin in one of two ways: with “sugar” or “vinegar.” Research and experience suggest that in eight out of ten cases, attorneys start with sugar—being friendly, cordial, and conversational. The remaining two begin with vinegar, where the attorney is immediately combative or confrontational.
Interestingly, no matter the starting tone, depositions invariably end with vinegar as the questioning becomes more pointed and adversarial. The strategic use of sugar at the outset is deliberate and calculated. It lulls the witness into a false sense of security to lower their guard and guide their brain into autopilot.
The Trap of Friendly Beginnings
Opposing counsel’s friendly demeanor is not an act of goodwill; it is a starting deposition setup. It is done by asking easy and harmless questions about the witness’s background, such as where they went to school, their current role, or even the timeline of their career. Non-threatening questions serve a dual purpose; they help the attorney assess the witness’s demeanor and communication style and subtly induce a state of relaxation and complacency in the witness.
From a neurocognitive perspective, the brain seeks efficiency. It avoids expending unnecessary energy, especially when it perceives the situation as safe or unchallenging. When attorneys start with “sugar,” the witness' brain shifts to autopilot: they will process and respond without the hyper-vigilance necessary to successfully address more critical questions later.
The autopilot state is the trap. Witnesses become too comfortable during this phase and often carry that conversational tone into the more substantive part of the deposition. They will then make careless errors, over-disclose information, and even agree with statements they should challenge.
The Antidote to Autopilot → Forced Cognition
To combat falling into autopilot, witnesses must be trained prior to the deposition to “force cognition.” It isn't enough to simply tell the witness to do this. Their brain must be neurocognitively rewired to be able to avoid falling into a comfortable question and answer pattern. Pausing and resetting before each question helps the witness maintain a heightened level of awareness and critical thinking from the moment the deposition begins until the end.
Even seemingly simple questions, such as, “How long have you been at your company?” must be followed by deliberate thought and a brief pause before answering.
The goal is to disrupt the conversational flow that opposing counsel seeks to establish when starting depositions. By doing so, the witness retains control of the pace of their testimony and avoids being manipulated into a false sense of security.
Train the Witness to Recognize the Setup
Witnesses must first recognize the friendly opening for what it is: a deliberate strategy to disarm them. Opposing attorneys do not ask background questions because they care about the answers.
Teach the witness that these types of questions are simply a warm-up: a method for the attorney to establish control over the deposition and the witness.
Once the witness understands this dynamic, they can approach even the friendliest interactions with the necessary caution and hyper-vigilance. They should remember that every question, no matter how seemingly harmless, serves a purpose in the attorney’s broader strategy.
Simulate the Deposition Experience
Deposition simulations are a crucial part of witness preparation. Simulations familiarize witnesses with the format and flow of a deposition while also desensitizing them to the psychological pressures of the environment. Role-playing and practice help witnesses learn to maintain their focus and resist the temptation to let their guard down.
A key aspect of these simulations is replicating the “sugar” start. Expose witnesses to this tactic in a controlled setting, train them to respond deliberately, and avoid falling into conversational traps. An experienced litigation psychologist can give witnesses the neurocognitive training required to think and process information differently – much more successfully than being told things like – "pay closer attention," "be mindful," "consider your words before speaking," or "give concise responses." Those reminders, though well-intended, are not sufficient enough to protect and prepare an untrained witness from opposing counsel’s sophisticated deposition strategy.
Both attorneys and psychology experts play a vital role in equipping witnesses for the challenges of a deposition. Beyond just teaching the facts of the case, they must help witnesses develop the cognitive patterns necessary to withstand opposing counsel’s tactics.
The High Stakes of Deposition Testimony
Witnesses don’t always know that depositions are not casual conversations; they are formal, high-stakes proceedings that can significantly influence a case's outcome. Opposing counsel’s initial friendliness is a tactical maneuver designed to shape the trajectory of the deposition in their favor.
When witnesses understand the science behind the start of the deposition and are prepared accordingly, they can avoid cognitive traps and maintain control of their testimony.
Attorneys, for their part, must prioritize comprehensive preparation that goes beyond case facts to address the psychological and strategic dimensions of the deposition process. The best way to do so is by consulting with behavioral and psychology experts to deliver effective neurocognitive training.
Successful Depositions With Courtroom Sciences
The start of a deposition is more than a warm-up; it is a carefully crafted setup designed to manipulate witnesses into a state of cognitive complacency. Countering opposing counsel tactics requires a combination of psychological awareness, deliberate preparation, and strategic training.
Attorneys and psychology experts must work together to ensure witnesses remain alert and deliberate and give effective and accurate testimony. For attorneys and their clients, investing in this level of preparation protects the witnesses and strengthens their case. Being strategically prepared for the start of a deposition is not just an option – it is an imperative.
Courtroom Sciences helps attorneys efficiently navigate litigation by providing psychological expertise, science-backed data, and expert support for all phases of litigation. Learn how CSI's litigation consulting experts can improve outcomes for your next case. Speak with one of our experts to get started.
Key Takeaways:
● The beginning of a deposition is a strategic setup, and opposing counsel often will use a friendly demeanor to disarm witnesses and lower their defenses.
● Friendly "sugar" questions lull witnesses into autopilot mode, making them vulnerable for later targeting.
● Witnesses must stay alert and deliberate in their responses, even to seemingly harmless questions, to avoid their brain going into autopilot – which leads witnesses to over-disclose or make errors.
● Training witnesses to apply forced cognition through practices such as pausing, thinking critically, and maintaining control helps combat conversational flow traps and keep testimony focused.
● Comprehensive preparation, including deposition simulations, is essential to desensitize witnesses to psychological pressures and strategic tactics.
● Partnering with behavioral and psychology experts equips witnesses with the cognitive tools and preparation needed to effectively withstand opposing counsel’s strategies.