When it comes to depositions, understanding plaintiff counsel deposition strategies can make or break a case. Depositions are essential to the discovery process and have a big impact on the trajectory of a lawsuit. Gain an advantage in defending your client and executing a better deposition by knowing how the plaintiff attorney you are up against handles their depositions.

It's important to know:

1.  How plaintiff counsel influences witness psychology

2.  The plaintiff's preparation methods

What’s a commonly overlooked aspect of depositions? 

One of the most overlooked aspects of depositions is the psychological setup that occurs in the first few minutes. The start of a deposition is where the foundation is laid – either for the plaintiff's counsel to gain control or for the witness to establish dominance. 

The Psychology of Deposition 

Depositions typically start in one of two ways: with “sugar” or with “vinegar.” These terms describe how the questioning attorney approaches the witness at the outset:

Sugar → Plaintiff counsel will often start by being friendly, asking non-threatening background questions, and easing into the conversation. The intent is to make the witness feel comfortable and lower their guard so they offer up information that the plaintiff attorney can use to their advantage.

Vinegar → In contrast, some attorneys may begin aggressively. They will skip pleasantries and go straight to the case-specific, difficult questions. This can trigger what psychologists call an "amygdala hijack," pushing the witness into a fight-or-flight response.

Both approaches are specific traps designed to manipulate the witness into an advantageous position for the plaintiff. Effective deposition preparation requires understanding these strategies and how to identify and counter them.

Sugar – a Warm-Up Trap

Here’s how the "sugar" method works in 3 steps:

1.  The attorney starts with seemingly innocuous questions: "Where did you go to school?" or "How long have you worked at the company?"

2.  The witness, lulled into a false sense of security, answers these questions quickly and comfortably.

3.  After 30-60 minutes of these soft background inquiries, the attorney gradually shifts to more critical, case-specific questions.

The goal is to put the witness in "autopilot" mode. When the witness becomes comfortable and conversational, they are more likely to: 

➔ respond carelessly

➔ make mistakes

➔ volunteer information they shouldn’t

To counteract this, witnesses must pause before responding to ensure that the brain stays in "cognitive mode" rather than slipping into casual, conversational patterns.

From the start, witnesses must receive training on how to keep their guard up and stay aware. The questions may appear innocent, yet each response should be carefully thought through prior to delivery. 

The Vinegar Strategy – Panic Mode

While the sugar strategy is the most common, some plaintiff attorneys prefer vinegar – to shock the witness and send them into a panic. They will do this by skipping the friendly questions and jumping straight into the hard-hitting ones. 

Why does this work? Most witnesses expect the deposition to start slow and easy. When the attorney begins aggressively, they catch the witness off guard, which can lead to: 

➔ stammering

➔ defensive answers

➔ even a complete mental block

It is the defense attorney's responsibility to prepare the witness for this kind of approach. Help them understand that this aggressive start is a tactic, not a reflection of the actual intensity of the case. When the witness is prepared for such a beginning, they will be less likely to fall into the plaintiff counsel’s trap.

The Importance of Preparation, Simulation and Repetition

The best way to prepare your witness for any of these plaintiff counsel deposition strategies is through repetition and simulation. Telling a witness about these strategies is not enough. They need to experience them firsthand in a controlled environment.

Rehearsing the opening phases of the deposition several times is essential to deposition preparation. It’s easy for a witness to fall back into old patterns, so repeatedly practicing both the "sugar" and "vinegar" styles of questioning can prepare your witness to recognize these traps and maintain control throughout the deposition. 

The goal is to establish a cognitive pattern where the witness stays focused and in control from start to finish.

Cognitive Control and Staying Focused 

Depositions are often long and tiring. As the hours wear on, even the best-prepared witnesses can lose focus due to cognitive fatigue. 

Plaintiff counsel deposition strategies often aim to wear down the witness mentally and physically. This is why it is so important to train the witness to stay mentally engaged.

Teach the witness to:

Pause before answering → Taking a brief moment before responding to any question – even easy ones – helps maintain control over the pace of the deposition.

Keep responses short and factual → One of the most common mistakes witnesses make is volunteering too much information. Plaintiff counsel often attempts to get the witness talking; the more they talk, the more likely they are to make a mistake.

Stay focused on the facts → No matter how friendly or conversational the opposing attorney appears, remind the witness that they are not in a casual conversation. Every question has a purpose, and every answer should be deliberate.

Training the Brain to Resist Plaintiff Counsel Tactics

Witness preparation and witness training are not the same thing. One of the most important elements of deposition preparation is witness cognitive training, which is witness effective training that focuses on behavior modification. 

The human brain is naturally inclined to conserve energy, so people often go into autopilot mode during mundane or repetitive tasks. However, during a deposition, the witness needs to stay fully alert and engaged.

The brain needs to be "rewired" to stay alert during the entire deposition. This involves forcing the brain to think about every question – whether easy or complex – and resist the urge to answer quickly. Practice and repetition help the witness learn to control the pace and structure of their responses and prevent opposing counsel from gaining the upper hand.

Take Control of the Deposition With Courtroom Sciences

Preparation is the key to countering plaintiff counsel's deposition strategies. Depositions are a game of control, and the side that can control the pace, tone, and flow of information will win. 

With the right preparation and guidance from expert litigation professionals, the witness will be ready to handle any tactic the plaintiff counsel throws at them.

Courtroom Sciences helps attorneys efficiently navigate litigation by providing psychological expertise, science-backed data, and expert support for all phases of litigation. Learn how CSI's litigation consulting experts can improve outcomes for your next case. Speak with one of our experts to get started.

Key Takeaways:

●  Understand and recognize the "sugar" and "vinegar" tactics used by plaintiff counsel to manipulate witness responses.

●  Prepare witnesses to maintain focus from the start by anticipating non-threatening questions that lower their guard.

●  Train witnesses to pause before answering, keeping responses short and factual to avoid giving away unnecessary information.

●  Practice deposition simulations with friendly and aggressive questioning styles to build cognitive control.

●  Repetition and simulation are key to training the brain to stay engaged and resist the plaintiff's counsel’s traps.