Best deposition advice: Don’t eat the chocolate

BVWireIssue #81-3
June 17, 2009

A top Tennessee litigator, speaking at the recent NACVA/IBA conference, gave away his best-kept deposition tactic for tripping up the opposing party’s valuation expert. (He wanted to preserve his anonymity in the ‘Wire, however, to keep an array of arrows in his adversarial quiver). Before the deposition gets underway, he makes sure that there is a bowl of chocolate candy on the table, within easy reach of the expert witness. He then asks his paralegal to record when the witness starts reaching for the chocolate (and slip him a note), so that forty-five minutes later, after the expert’s blood sugar levels have spiked and then plummeted, “I can start going into the ‘power chapter’ of my deposition,” he says.
Most damage done after 6 p.m. While the expert witness is indulging in sweets, this same attorney makes sure to take spoonfuls of peanut butter, or another protein-packed snack during the breaks to keep his head clear, and then as the day winds down he starts moving in with more “power” questions. In fact, he has found that the most damaging parts of his depositions have taken place after six in the evening, when the witness’s blood sugar levels are low, along with any remaining resistance.

His advice: Even if experts can’t always stay away from the candy bowl during those day-long, draining depositions, they can work with their attorneys to establish clear time constraints. If you need or want to stop by the end of the business day, set this deadline up front (but don’t wait until 5:25 p.m. to mention a commitment at 5:30). Bring your confidence, your complete file—and your own power-packed snacks. Look for more tips (and tricks) from litigators in a forthcoming issue of the Business Valuation Update

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