While recently reading an article in the ABA Journal about techniques to taking an expert deposition, I began to do what I perhaps do best ….over-think the issue.  My focused turned not to expert depositions, but depositions in general and the different styles and techniques I have seen over the years, and what was most effective in different situations. 

One approach is the attorney that simply cannot overcome his own personality and thus every deposition is a reflection of his personality.  While sometimes effective, often times this can be the least effective because the defending attorney can prepare his client for what to expect.  If I know the other attorney always has an aggressive, jerkish style, I can let my client know that’s what should be expected.  When the attorney then follows through with the approach I’ve described, the client is not caught off guard, but instead feels assured that what I told him to expect is what’s happening.  If the attorney has a weak personality or is usually unprepared or unfocused a client can feel lost when being deposed because their natural thought is that an attorney is prepared and knows where they are going in a deposition.  Again forewarning the client to expect this aimless approach makes them feel reassured that the situation is as to be expected. 

My conclusion was that the best attorney is not subject to a particular style, but instead can have many styles depending on the person he is deposing and ultimate goal.  More important however is that the most effective technique is not always the one that mimics the personality of the deponent, but often times is the opposite of the deponent’s personality.

That brought me to the Grinch and Cindy Lou Who as an illustration of how taking an approach opposite to the deponent’s natural personality can be most effective.  If sent out on the task of deposing the Grinch and Cindy Lou Who, one’s gut reaction would be to think that an aggressive, in your face type approach would be best to use for the Grinch.  On the flipside, certainly little Cindy Lou would merit a pleasant, friendly environment … sweet as she was.  In reality, just the opposite approaches may produce better results.  The Grinch certainly is not expecting anyone to be nice to him.  Put him in a hostile situation, treat him poorly and disrespect him from the beginning and you’ve simply put him in his own living room.  He’s right at home and thus less likely to give you helpful information.  Treat him nicely, disarm him and force him to re-evaluate the entire situation and you will catch him off guard.  Suddenly you’re not the jerk his attorney told him you were and he’s questioning his attorney while talking to you.  After all, Cindy Lou Who’s kindness caught him off guard so much that his heart grew three sizes and he suddenly became a huge fan of Christmas.

On the other side, with a meeker Cindy Lou Who deponent, a more aggressive approach may produce better results.  The pleasant approach may make the deponent feel comfortable and thus give only the information he or she wants.  Taking the witness out of their comfort zone in this scenario can cause them to be more forthright in their attempt to please you, thereby hoping you will allow them to return to their comfort zone.  A caveat is that a sense of decorum is still necessary.  If Cindy Lou is simply beat up and bloodied she may retreat into her shell and produce absolutely no information.  Thus, the style is aggressive or confrontational, but not simply being a jerk.

Obviously while the approaches with the Grinch and Cindy Lou are only two of many possibilities, they underscore the importance of an attorney’s style being geared toward the desired result and not just a reflection of the attorney’s own personality.  They further underscore the importance of having an attorney that thinks through the strategy and approach of a case to maximize effectiveness on your side and minimize the impact of the other side.  After all, clients hire attorneys to win their case, not simply show up and be themselves.