“Just answer the question” is standard deposition advice. The idea—conveyed by countless lawyers to their clients—is that you should only answer the question asked, and nothing more. Don’t volunteer additional information.

If you’ve ever testified in a deposition, you probably heard some version of this advice from your lawyer. And you probably didn’t follow it.

“Just answer the question” may be the most ignored legal advice ever.

It’s not that people deliberately ignore advice from their lawyers. It’s just that the advice is so unnatural. Imagine a Monday morning conversation at the office like this:

Jim: Hey, Pam, how are you?

Pam: Fine.

Jim: Oh, that’s good. Did you have a good weekend?

Pam: Yes.

Jim: . . . Ok, well. Um, wow, can you believe that Texas-OU game, that was amazing, right?

Pam: Right.

No, people don’t talk like this. So expecting them to suddenly change the way they talk is asking a lot.

Now add to that strong emotions and a lot of money at stake. How many people will naturally just answer the question asked and nothing more?

I had one client who naturally just answered the question and stopped. He was an engineer.

And in a sense he was the exception that proves the rule. Social habits are not the only reason people find it difficult to just answer the question. It’s also because the vast majority of people are not analytical. Most people think intuitively, not analytically.

Try asking somebody “would you have voted for Brett Kavanaugh?” You’re not going to get a lot of “Yes, I would, because . . .” or “No, for the following three reasons. Number one . . .” Chances are you’re more likely to get some kind of emotional, gut-level reaction.

Yet despite how unnatural it is to just answer the question, some can be taught. The teachable can be trained to do a better job of just answering the question. If you work with them enough, by the time of the deposition they will do a pretty good job of just answering the question.

But some people seem unteachable. No matter how hard you try, they just can’t help themselves. There are many reasons for this.

Some people are angry about perceived injustice and want to vent their anger.

Some people have too much pride and want to show the opponent how smart they are.

Some people are nervous and talk more to try to compensate for their nervousness.

“Just answer the question” goes against the grain so much that I have sometimes wondered whether it would be better to reject the conventional wisdom and scrap the standard advice. Just let people go with the flow and answer au naturel.

But let’s not be too quick to embrace the natural approach. There are some good reasons for the conventional wisdom.

Why do lawyers tell clients to just answer the question in the first place? What exactly are we trying to avoid when we give clients this advice?

I think it comes down to trying to avoid four things. When you don’t just answer the question, you increase the likelihood that you will do one of the following:

1. Give incorrect testimony that help’s the other side’s case.

2. Give incorrect testimony that is favorable to your case but weakens your credibility.

3. Volunteer information that is helpful to the other side’s case.

4. Volunteer information that is helpful to your case, helping the other side prepare.

All of these things are bad, but some are worse than others. I have listed them from most harmful to least harmful.

The worst one is making a mistake that is helpful to the other side. This happens more often than you might think. One reason for this is that the lawyer asking the questions wants this to happen. And the more skilled that lawyer is, the more likely you are to make this kind of mistake.

Let’s look at an example from my favorite hypothetical case, Paula Payne Windows v. Dawn Davis.

Screen Shot 2018-10-07 at 9.22.01 PM

Here we see the perils of volunteering too much. This witness makes two mistakes. First, she overstates the facts by saying she never emailed any customers. Second, she volunteers the fact that she called some customers.

Following the “just answer the question” advice can help people avoid mistakes like this.

But just answering the question isn’t always the best way to answer the question. Sometimes a simple yes or no leaves out your side of the story and makes the lawyer’s job too easy.

Let’s take this example:

Screen Shot 2018-10-07 at 9.23.20 PM

Whoa! Did the witness just admit she concealed a critical fact from her employer? This is like Lester Holt getting Trump to say he fired Comey because of the Russia investigation, right? Game over.

Not necessarily. Under Texas law, an employee generally has a right to make plans to compete with her employer, and even to conceal those plans from the employer. See my popular post on Fiduciary Duty Lite.

But the simple “yes” still has a bad smell to it. Here are some alternatives:

Q: Did you conceal that fact from your employer?

A: They didn’t ask.

or

A: Yes, of course. Who wouldn’t?

or

A: Yes, because I wasn’t required to tell them I was looking.

or

A: Did you conceal that from your last employer?

Actually, scratch that last answer. Don’t do that.

But I see some appeal to the other answers, especially for courtroom testimony. These answers don’t dodge the question, but they give the witness a chance to push back. Sometimes it’s better to give an answer like this to prevent the questioning lawyer from getting on too much of a roll.

Of course, the lawyer asking the questions is likely to follow up with “is that a yes?” At that point, the witness should concede the answer. I call this the “you get to argue once” rule and wrote about it in Witness Preparation Lessons from the Waymo v. Uber Trial. If you argue too long, you’re just going to look defensive or evasive.

Plus, you don’t want to go too far in trying to match wits with the lawyer asking the questions. You may be really smart and good at your job, but I guarantee you, even a mediocre lawyer is better at duking it out in a deposition than a non-lawyer.

Wait a minute, I can hear a client saying. So first you tell me to follow the “just answer the question rule” sometimes, and then you give me another rule to follow. How am I supposed to keep all this straight, especially when I’m under pressure? It’s like telling a golfer to concentrate on five different things in the middle of swinging the club.

I agree. See What the Ken Starr Interview Can Teach Lawyers About Witness Preparation – and Golf. For some witnesses, this is just too much. It depends on the witness’s skill level and teachability.

It reminds me of when Aristotle wrote about the best kind of government regime. He analogized to athletic training and said that the best training for the best body may be different than the best training for most bodies. (The Politics, Book 4, Chapter 1)

That’s true of deposition training too. You have to adapt the training to the person. If the witness really struggles to answer hard questions, it may be better to keep it simple and “just answer the question.”

But what if the witness is unskilled and unteachable? What do you do when “just answer the question” is just more than the witness can bear?

This is where the conventional “just answer the question” advice should yield to a more fundamental maxim: listen carefully to the question.

As we’ve seen, there is no single good way to answer tough questions. The best way to answer a question often requires a judgment call.

But “listen carefully to the question” is always good advice for everybody. If you listen carefully to the question—and think about what the lawyer is really asking—you are much less likely to make the worst kind of mistakes.

So, it turns out that the main problem with “just answer the question” is that it shifts the focus to the wrong thing. The focus should be on listening to the question, not deciding how to answer.

___________________________________________________________________

IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

 

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