Page 46 - ATR 6 2018 web

agree with it even though many wit-
nesses, most witnesses, take the path of
least resistance because they are want-
ing to get out of there and this lawyer
“YOU’VE GOT, IN MY VIEW, TO BE ON GUARD FROM is asking a really softball question that
THE VERY FIRST INNOCENT QUESTIONS, THE BROAD everybody can agree with.”
Think through the implications of a
QUESTIONS THAT SEEM LIKE NO-BRAINERS TO SAY yes response, and add nuance where you
‘YEAH, I AGREE THAT SAFETY RULES ARE DESIGNED can. He gives an example of this type of
TO PROTECT PEOPLE AND KEEP PEOPLE SAFE.’” thinking.
Examiner: “Do you agree that a
—JERRY SALLINGS, ATTORNEY violation of all safety rules poses a sub-
AT WRIGHT LINDSEY, JENNINGS stantial danger to the public?”
Instead of saying “Well, yeah.” Say,
“Well, not necessarily. For example,
requiring a driver to wear a seat belt is a
safety rule, but it doesn’t pose any dan-
Sallings explains. “And if you’ve said ‘yes’ say no when you’ve already said ‘yes’ all ger to the traveling public.”
all along, then at the end you are stuck.” along.” Sallings’s next piece of advice is to
The witnesses might look like a His advice is to listen to your clarify the incorrect assumptions that
hypocrite or a liar when they have to attorney and to practice slowing down are in the questions.
explain that what they meant by their and adding nuance to “yes” or “no” If the question is wrong from the
earlier “yes,” was not applicable to the questions. start, don’t ignore that. If the question
case. “Well, I said earlier that it was a “I haven’t done a deposition in is about a driver running a stop sign
danger, but in our case, it’s really not,” seven or eight years that I haven’t spent and causing danger to the public, point
Sallings reenacts the frustration of at least the first day prior to the deposi- out that your driver did NOT run a stop
finding out you’ve agreed to things you tion with the attorney going over the sign and so the question isn’t relevant
didn’t mean to. prep work, because they are going to to the case.
Seeing how easy it is to manipulate have a good idea of where they are going “Don’t let them expand it beyond
a cross-examination is enough to trig- to lead you down, what path they are the circumstances,” he says. And
ger a real fear response in safety direc- going to go.” use qualifying language. Preface
tors of trucking companies who may be your answers with “not necessarily”
deposed. THINK LIKE A HUMAN, NOT A or “depends” to avoid blanket “yes”
“You’ve got, in my view, to be on REPTILE or “no” soundbites that can be used
guard from the very first innocent ques- Slow down. Don’t just say yes to against you.
tions, the broad questions that seem like be agreeable. While it might sound like Don’t be a soundbite. “You may be
no-brainers to say ‘Yeah, I agree that a platitude, it’s helpful advice from in a five-hour deposition that is video-
safety rules are designed to protect peo- Sallings. The reptile theory is used on taped, but when he gets ready to put on
ple and keep people safe,’” Sallings says. witnesses, too, not just the jury. We all his case, you are going to see about one
Dean Newell, vice president of want to be safe. But if the questions minute here or there from your deposi-
safety and driver training at Maverick fetishize the idea of safety, bring the tion that gives that answer.
Transportation, agrees. From his per- conversation back to the specifics of the “If you let him clip along with you
spective, the deposition is nerve-wrack- case. saying yes to everything that he gives
ing, but it’s possible to prepare. Sallings knows your instinct is to you softball broad questions on, then
“Basically, if you’ve never been agree to avoid any conflict with your they are going to play that at the trial,
through one, it’s a living hell. You lay in examiner, but he advises you to resist and it’s going to look like ‘yeah, I agree,
bed at night thinking about how you are that instinct. Reptiles are instinctual, we’re terrible.’”
going to answer some of these things,” and that’s what the examiner is The reptile theory is a fear tactic,
Newell says. betting on. but witnesses don’t have to be afraid.
He stretches his hands out, “They “Instead of just saying yes, I would Witnesses are humans, not reptiles.
are going to start out this wide, and it recommend when they give you a broad Human brains have the ability to
is going to come down to the very end question like “Wouldn’t you agree that reflect, plan and use ration and nuance
when they are going to ask you one your truck is dangerous to the travel- to make sure that they don’t become a
simple question that it’s kind of hard to ing public and many others?” don’t just tool in the plaintiff lawyer’s belt. ATR

46 Issue 6 2018 | ARKANSAS TRUCKING REPORT