What’s My Piece of the Pie?

A Simple Concept for Building a Deponent’s Confidence and Understanding

Better Witnesses Trial Preparation ServicesA sigh of relief, a nod of understanding, clarity – this is what I see when the simple concept of, “What’s My Piece of the Pie” is introduced during a witness preparation session. Until this introduction, most witnesses are under the false impression that they are obligated to know and answer during their deposition, whether they know the accurate information to answer the question or not. Let’s take for example, the company witness, working for a large organization, whom counsel suspects will be asked to testify about policies and procedures. He/she was not part of creating, or originally implementing these policies and procedures. Most commonly, the witness may have reviewed them at the start of their tenure with the company and has not reviewed them since. The witness knows of the policy and generally follows it – nothing more. Yet when asked to interpret and source the policy and its implementation by others, the witness feels compelled to answer. This becomes quite problematic, often resulting in the witness speculating, answering incorrectly and unknowingly becoming an expert against his or her own company.

In another example, the witness is easily tricked into answering for someone else when they have engaged in conversation with someone. For example, the doctor defendant is asked by opposing counsel, “What do you think your partner was thinking when he saw this note of yours in the patient’s chart?” The witness knows his partner well, and in any other setting would be more than comfortable answering. The witness must understand that it is not his/her responsibility to testify for anyone else. Again, what someone else was thinking is not their “piece of the pie”.

This is when a pie chart, with clearly identified different sized pieces, is placed in front of the witness. After placing the pie chart in front of the witness, simply ask, “Which piece of pie is yours?” It will be interesting to watch as the witness struggles between hoping his or her piece is the sliver, but at the same time realizing it is not the largest piece. Now counsel needs to confirm whether the witness is correct in his or her assessment. Did they pick a piece of pie that is too big, or too small? Has the witness correctly identified their role in the case scenario or not? Counsel should then use the illustration to identify separate pieces of pie designated to other witnesses. In the prior case example, one piece of pie would be identified as “policies and procedures”. If it is appropriate, the person actually responsible for this piece of the pie can be identified.

The shift in the witness’ demeanor is often palpable when this simple concept is implemented. After feeling initially overwhelmed, the enormity of the task of testifying becomes manageable. Witnesses need this simple technique to build confidence throughout the deposition process. Once a witness realizes that his or her “piece of the pie” is within reason, the analogy can be further extrapolated to identify what is specifically in that witness’ piece of pie and most importantly what is not.

“Objection- Lack of Foundation”

Further, it is the easiest way to explain, in part, the objection “Lack of Foundation”. Depositions are nerve – wracking enough without the added problem of the witness not being able to interpret the legalese conveyed by counsel during the process. When a witness understands that “Lack of Foundation” often refers to his or her “piece of the pie”, once again the witness gains confidence, realizing in the moment, that he or she is not responsible for that area of questioning and can answer with something like, “I don’t know” or “That question is outside my area of expertise” or “I am not the right person to answer that question.” Counsel should intentionally practice questions and answers where the witness has been asked a question that is outside of his/her piece of the pie and confirm that if the witness should attempt to answer a question that is not in “their piece of the pie” it is going to be problematic.

This is a straightforward and effective tool that my clients and I use in every witness preparation session.