We do this thing in litigation we call “depositions.” One side can ask questions of a key witness. The testimony is recorded by a court reporter. Depositions can be very dull. They an also be very tense. After all, if the parties got along, there would be no lawsuit. Every client I have ever had was very stressed at being deposed for hours about their story. Male and female clients have cried at various times during their depositions. The atmosphere can become very tense. So, when I see the following video clip, I am not surprised: link. This is an extreme deposition. But, I am sure a good deal of stress preceded this deposition. There are no judges present at a deposition. But, as lawyers, we are supposed to carry on the deposition as if the testimony was being provided in court.
This second video clip is more typical of depositions: link. The key in any deposition is to simply always be sure to tell the truth and never guess. Some plaintiff employees feel the need to answer every question, even if the answer is a guess. Do not guess. There is no requirement that a witness remember every fact. In fact, most witnesses do not recall every detail about a particular event. Some witnesses feel the need to recall every date. But, again, there is no requirement for a witness to recall every detail.
In the world of litigation, “niceness” does count. See this video clip in which a witness is supposedly tough in responding to a particular question. The witness probably enjoyed some momentary satisfaction in expressing himself. But, if that clip was shown to a jury, the jury would be far less impressed with his answer. Juries do not appreciate “tit for tat.” On the contrary, juries respond to professional disagreement. Everything a plaintiff or defendant do in a lawsuit is recorded and saved. Every party needs to be sure they do nothing that could cost you a vote or two with the jury.
Many clients press me to respond tit for tat when the other side takes a cheap shot of engages in unprofessional behavior. We must resist the temptation to give in to our inner “Mongo.” As a well known litigation commentator, James McElhaney, says, “Mongo not like. Mongo want revenge!” Mongo may gain brief satisfaction. But, Mongo will probably lose the trial.