One of the hottest topics in civil litigation of late is nuclear verdicts. Presentations, articles, and books have been written on the topic. The defense bar, insurance carriers, and corporations have taken a keen interest in understanding and defending against the causes of nuclear verdicts. With approximately 5% of civil cases going to trial, the number of nuclear verdicts pales in comparison to the number of nuclear settlements that occur throughout the United States daily. And yet, there is little discussion in the legal community about the causes of nuclear settlements.
Attorneys know ineffective fact witness testimony in depositions can dramatically inflate settlement values. There is a growing debate among defense attorneys regarding how witnesses should answer difficult leading questions during depositions. When presented with unfavorable yet indisputable facts, should witnesses agree with the fact and stop talking, or agree with it and explain it away with a defense-friendly theme? When deponents are accused of negligence and causing harm, should they disagree with the questioner and stop talking, or disagree and explain why they are not at fault? Which philosophy is more effective at suppressing settlement values? We strongly believe that the more talkative witnesses do themselves a disservice and lead to setting up their cases for disastrous results, even if the plan is to try to get the case settled and not take it to trial.
It is exceptionally rare that defense witnesses “win” the case through their deposition testimony. A more likely outcome is defense witness testimony will “lose” the case during the deposition. Without extensive preparation, the confrontation between defense witnesses and skilled trial attorneys is not a fair fight, regardless of the witnesses’ intelligence or case facts. Savvy plaintiffs’ attorneys salivate when defense fact witnesses launch into arguments or attempt to explain away unfavorable case issues. This results in a mismatch in relative skills—defense witnesses are completely out of their element, fighting on foreign soil, and attempting to out-argue a professional trial lawyer. Consider the following examples:
Example 1: A trucking accident case in which one of the allegations against the defendant trucking company is that its driver was not paying attention while driving, leading to a fatal collision. The defense denies the allegation, stating that the accident was the decedent’s fault for abruptly stopping in front of the truck. At deposition, opposing counsel shows the company’s safety director the in-cab video of the driver cleaning off snow and ice from his side mirror while driving moments before the fatal collision. The deponent is then asked, “Isn’t it true that your company policy states that drivers should clean off their mirrors during their pre-trip inspection of the vehicle before putting the vehicle in motion?” The safety director is then shown the policy. How should this individual respond to the factual question?
In this example, the witness is presented with an indisputable fact and is asked to confirm the fact by the cross-examiner. The facts presented, however, are not favorable to the defense. In each instance, the deponent has two options:
• Embrace. Accept the fact by answering the question directly and providing no further information beyond the question. “Yes, that is correct.”
• Pivot. Accept the fact, then immediately provide an explanation to make the fact appear less damaging by answering. “Yes, but if you recall that was a very cold, frosty morning and it would not be unusual for the mirror to frost up again.”
Example 2: A medical malpractice case in which one of the allegations against the defendant physician is that she failed to obtain an MRI after a major surgery, which led to a delay in diagnosing a serious medical condition. The defense denies the allegation, stating that getting an MRI was impossible because the patient was too large for the on-site scanner. At deposition, opposing counsel asks the physician, “Isn’t it true that you breached the standard of care by failing to obtain a post-surgical MRI?” The deponent is shown the medical record, clearly indicating that an MRI was not obtained. In this example, the witness is being accused of negligence by the cross-examiner. Assuming the defense is not admitting liability, the witness cannot agree with this allegation. In this instance, the deponent has two options:
• Reject. Reject the allegation by answering the question directly and providing no further information. “No, I disagree.”
• Pivot. Reject the allegation, then immediately provide an explanation to defend their position. “No, because we attempted to get one, but the patient was too large to fit into our MRI scanner. We performed a CT scan instead, which was unremarkable. The plan was to transfer him to another hospital that had an ‘open’ MRI device that would be more suitable for the patient’s size. By the time we set up transport to the other hospital, the patient had developed significant cardiac and pulmonary problems that made him too unstable for the scan.”
In these examples, both witnesses were instructed to pivot and both cases resulted in nuclear settlements.
Embrace/Reject Versus Pivoting
Defense attorneys and litigation consultants continue to argue the embrace/reject and pivot approaches. Regarding questions asking defense witnesses to confirm an unfavorable fact, some individuals believe witnesses should admit and embrace case facts without providing an additional explanation until specifically requested. This approach allows witnesses to be truthful and cut off additional counter-attack opportunities by opposing counsel. However, others believe it is essential to deny opposing counsel’s attempt at a sound bite (i.e., agreement to the unfavorable fact) and believe witnesses should agree to the fact and immediately pivot to a defense-friendly explanation to take away the sting of the bad fact.
Regarding questions alleging negligence, some defense attorneys think witnesses should confidently reject the accusation without providing additional information. This approach allows witnesses to strongly disagree with the questioner and not become argumentative or defensive. If the questioner follows up with a “Why?” question, witnesses should provide a concise explanation confidently while saving more elaborate explanations for trial. However, other attorneys believe that defense witnesses need to “fight fire with fire” and actively seek opportunities to defend their position with defense-themed explanations, especially when facing an accusation of wrongdoing. Rather than waiting for a “why?” question, witnesses are instructed to respond with, “No, because (explanation).”
The underlying legal strategies in the prior examples are:
• Embrace Facts/Reject Accusations.
o Explanations should be saved for trial when defense witnesses will have ample opportunity to explain themselves on direct (or rehabilitation) examination.
o It is unwise to show all your strategic cards at deposition, as it allows your adversary time to better prepare for your plan at trial.
o Agree with facts, reject allegations, and then stop talking; only explain yourself if you are explicitly asked.
o More talking leads to more questions, which increases the odds of opening a door that defense counsel wants to keep closed.
• Pivoting.
o Most trials settle, and witnesses must “win” the deposition by providing explanations for negative facts and allegations immediately.
o It is unwise to allow opposing counsel to obtain damaging sound bites of defense witnesses agreeing to harmful facts or denying an accusation without explanation.
o Elaborate and immediate explanations by defense witnesses may convince opposing counsel that they have no case, causing them to rethink their settlement stance.
o Defense witnesses need to have a spine and fight back against accusations.
Following is a real-life example of a witness pivoting in a medical malpractice case.
Attorney: Doctor, what are the known published indications for a pancreatic sphincterotomy?
Doctor: Well, (the patient) had excellent indications for performing a pancreatic sphincterotomy. The patient had a dilated pancreatic duct that was clearly visible on her MRCP. Now, the radiologist that read that film correctly identified the dilated bile duct at 11 millimeters. Now, I measured it at 11.7 millimeters. He correctly identified the dilated bile duct, and it’s in an intact gallbladder. For the jury to know that typically a normal bile duct in the presence of an intact gallbladder, the measurement should be under six millimeters. So right now her bile duct is twice the normal diameter. In addition, what the radiologist did not read was that—the—there was dilation of the pancreatic duct. I read it to be 4.7 millimeters to 5.4 millimeters, and they had the pancreas above the ampulla/papilla.
So, I knew going into my procedure that this patient had abdominal pain. Her abdominal pain initially was intermittent. It was located in the epigastric area and right upper quadrant. It radiated into the back. It was accompanied—she went to the emergency room like twice on two visits, November 21st and—I’m sorry, November 14th and November 24th. Both visits, she had pain and abnormal liver function tests. Both of those visits, however, she had a normal amylase and lipase.
And I confirmed the dilated pancreatic duct at the time of my contrast injection into the pancreatic duct showing now the pancreatic duct measured seven millimeters. So, on the MRCP, which was performed I believe the 18th of November, it was anywhere from 4.7 millimeters to 5.4 millimeters. However, now at the time of the ERCP, it’s dilated even progressively more to seven millimeters, and for the jury to know that the normal diameter of the pancreatic duct and the head is three millimeters.
Attorney: Are you done, Doctor?
Doctor: Yes.
Attorney: Okay. My question was: What are the known indications for a pancreatic sphincterotomy?
After providing a three-paragraph response, the examiner repeats the question because the witness spent less time answering the question and more time pivoting and making sure he provided information for the jury to know. Even an open-ended question is not a license to be non-responsive and pivot to your talking points (thereby disclosing the entire defense theme) as politicians do, but still only calls for a focused, limited, and responsive answer.
The above response by the physician is problematic for several reasons. First, it is clear from the examiner’s follow-up question that the witness was not responding to the actual question. Second, the response was 37 lines of text in the deposition transcript, approximately 30 more than were needed to respond appropriately to the question. Third, providing so many lines of text increases the likelihood that opposing counsel will ask additional questions about the various pieces of information voluntarily offered by the witness. Therefore, rather than shorten the deposition, this witness has significantly increased it by his own doing. Fourth, opposing counsel was not overly concerned with the witness’s long-winded response. Rather than say, “Thank you, Doctor, for that explanation. That clarifies many of my questions,” opposing counsel repeated his initial question. Fifth, the witness was focused on the information for the jury to know without appreciating they would likely be unable to follow along and retain all this information. This witness could have offered the same information across several questions from opposing counsel—if counsel ever thought to ask these questions. Finally, this witness was in teacher mode and felt compelled to try to explain everything that was done in this case. Rather than confidently embracing his conduct, this witness looked defensive, and the lengthy response gave the impression that the witness was trying to explain away his alleged mistake.
Legal Testimony Versus Political Debates
Pivoting is a technique used in both media training and political debate preparation. Specifically, people being interviewed by the media or participating in a political debate are taught to pivot their message by their expert consultants when they are asked a question they do not wish to answer. In other words, by definition, pivoting is an accepted evasive maneuver in politics that is more commonly known as dodging a question. This approach is commonplace in contemporary politics, and politicians receive advanced training in pivoting methods to master these skills before debates.
Todd Rogers, a Harvard professor, was reportedly enraged by the amount of pivoting he saw in the 2004 presidential debates and wanted to explore the effectiveness of pivoting on voters. He conducted an experiment in which he recorded a moderator asking candidates a series of questions and manipulated the level of pivoting in the candidates’ responses. Overall, he found that egregious pivots were easily detected by the research participants and led to negative ratings of the candidates’ likability, honesty, and trustworthiness. However, he found that more nuanced pivots often go undetected by the average person. Rogers concluded that many people are incapable of detecting subtle evasion maneuvers and believes politicians can get away with dodging questions as much as 70% of the time.
However, deposition and trial testimony are completely different scenarios relative to a political debate:
• Witnesses are under oath during sworn testimony, unlike politicians at debates. Politicians dodge questions, deceive, or even flat-out lie with little consequence.
• Unlike a political debate moderator, a cross-examining attorney can punish defense witnesses for pivoting attempts and badly damage their credibility by illuminating the pivot attempt and repeating the question to force the witnesses into answering the question directly.
• If a case does get to the trial phase, jurors have vastly different expectations of witnesses in civil litigation compared to explanations and promises made by politicians. Society expects politicians to dodge questions and be slippery during media interviews and political debates. That is not the case in litigation—jurors expect witnesses to be honest and straightforward during their testimony.
• Jurors do not want to be in a trial any longer than they have to be. They often view non-responsiveness and pivoting as a significant waste of their time, which shines a negative light on the side appearing doing so. In depositions, pivoting, rambling witnesses can provide plaintiff’s counsel insight into the defendant’s trial theme. Plaintiff’s counsel will be much better prepared for trial if defense witnesses give away all they might say on the witness stand.
For the same reasons we strongly promote the idea of keeping our own clients’ answers short and responsive, defense counsel should get mileage out of testimony from plaintiffs or their expert witnesses if they try pivoting themselves. It may extend the length of a deposition, but allowing pivoting plaintiff witnesses to talk as much as they like is rarely bad—other than the headache it will cause you to listen to them. They appear argumentative, non-responsive, and uncooperative as any witness or politician who will not answer a simple question with a simple answer. If defense witnesses give responsive answers, the dichotomy between the sides will be apparent. Jurors can easily conclude that while the defense has nothing to hide, the plaintiff witnesses keep trying to redirect the examination. Whether to call them out with a “Why won’t you just answer the question?” type of statement is a game-time strategic decision. Defense counsel may not want to be seen as bullying the non-responsive witness. One easy approach at trial is for defense counsel to ask simple, short, and straightforward questions. After a lengthy pivoting response, say, “Let me try this again, sir. All I asked you was….” The occasional refrain of “let me ask again,” or “once again, sir,” makes it clear to jurors (if they have not already figured it out) that the witness won’t answer the question.
Understanding the Risks
While nuclear verdicts tend to get the most media attention, the silent danger in civil litigation is nuclear settlements. At the heart of many of these exorbitant settlements is ineffective witness testimony in depositions. Rather than embrace or reject their conduct, witnesses often feel the need (or are trained by their legal team) to pivot away from the question and try to “win” the deposition—something they do not need to do, nor are they able to do.
In part two of our article, we will address the rationale for pivoting, explain why it does not work, and identify the risks of witnesses pivoting at deposition.