How Witness Pivoting at Deposition Leads to Nuclear Settlements
Depositions shape the trajectory of litigation. One of the most damaging tactics witnesses can employ is pivoting at deposition, where they attempt to deflect, dodge, or argue their way out of answering direct questions. Pivoting at deposition often backfires, and while this technique may seem like a protective measure, it can also lead to nuclear settlements.
Despite being popularized by political debate techniques, pivoting is a disastrous approach in litigation. By exposing the pivot effort and repeating the question to force the witnesses to answer directly, a cross-examining attorney can significantly damage the credibility of defense witnesses and penalize them for trying to pivot—unlike the moderator of a political discussion.
Pivoting at a deposition has psychological and strategic consequences. When the defense embraces a more transparent witness preparation strategy, it can prevent nuclear outcomes.
Can witnesses recover from credibility damage caused by pivoting?
Jurors perceive pivoting as evasive and dishonest – to restore trust, witnesses must show transparency, acknowledge inconsistencies, clarify misunderstandings, and use a fact-based approach for future testimony. Moving forward, the witness must acknowledge prior mistakes without appearing evasive, and deliver consistent, composed answers. Effective witness training with behavioral and psychology experts can help rebuild trust, but the initial damage may still impact settlement negotiations and trial outcomes.
What does it mean to pivot at a deposition?
A strategy commonly used in political debates, where candidates train extensively to sidestep difficult questions, pivoting occurs when a witness avoids directly answering a question. However, in a legal setting, pivoting is not just ineffective – it is dangerous. Pivoting includes three main behaviors:
1. Arguing the question → A witness responds with, “Yes, but…” and then attempts to justify or explain instead of simply confirming a fact.
2. Dodging the question → The witness refuses to give a straight answer, hoping to deflect attention away from an unfavorable fact.
3. Getting defensive → Instead of acknowledging a fact, the witness fights the line of questioning, often leading to a loss of credibility.
Why Pivoting at Deposition Fails
When a witness pivots, they appear evasive. The opposing attorney will often press harder, exposing the witness’s discomfort and reluctance to answer. This damages credibility, one of a witness's most valuable assets in litigation.
Jurors, judges, and mediators value transparency. When a witness is seen as dodging questions, it casts doubt on their entire testimony. As a result, opposing counsel can exploit this weakness to push for a higher settlement, arguing that the witness will not hold up under cross-examination at trial.
Increased Deposition Length and Costs
When a witness continually pivots, they prolong the deposition. Instead of a streamlined questioning process, the attorney must repeatedly redirect the witness back to the original question.
This results in longer deposition times, higher legal fees, and increased frustration for defense clients. Worse, it gives the opposing attorney more opportunities to trip the witness up, leading to even more damaging testimony.
Ammunition for Plaintiff Attorneys
When witnesses pivot, they often unintentionally reveal damaging information. Instead of addressing the issue directly, they talk themselves into a corner and give opposing counsel multiple angles and options for follow-up attacks.
For example, consider a trucking case where the defense’s corporate safety representative is asked:
Attorney: Isn’t it true that your driver was speeding 10 miles over the limit?
Witness: Yes, but the weather conditions were clear, and our drivers are trained to handle these situations. Plus, our safety record shows…
This response invites further scrutiny. Opposing counsel can immediately pursue new lines of questioning about training protocols, the company's safety history, and weather-related policies — all from a single pivot. A stronger response would be:
Yes, that’s what the GPS data shows.
Period. By pivoting, the witness inadvertently expanded the attorney’s ammo for cross-examination.
This pattern particularly damages cases with multiple witnesses. When early witnesses — especially corporate representatives — pivot poorly, cases often become unrecoverable despite later witnesses being properly prepared. Mediators frequently cite these problematic depositions as evidence that witnesses "won't hold up at trial."
How Escalation to Nuclear Settlements Happens
When multiple witnesses in a case pivot, the risk of nuclear settlements significantly increases. The effect compounds with each witness who displays this behavior, creating a pattern that opposing counsel can demonstrate to mediators. If key witnesses – such as safety directors, corporate representatives, or executives – engage in evasive tactics, plaintiffs’ attorneys exploit these weaknesses during mediation.
Opposing counsel will argue:
➔“Your witnesses cannot answer basic questions.”
➔“When their depositions are played during the trial, the jury will see them squirming.”
➔“If this goes to trial, the jury will punish your client.”
This often forces the defendant into a large settlement payout, as they cannot afford the risk of losing at trial.
The Solution Is to Embrace and Reject Methodology
The Embrace and Reject method is a more effective approach to deposition testimony. This method allows witnesses to control the narrative without falling into the trap of prolonged, defensive explanations that ultimately weaken their position.
The Embrace and Reject technique focuses on two key principles that require advance preparation with witnesses:
Embrace facts, even when unfavorable.
If a negative fact is true, acknowledge it directly. For example: “Yes, the GPS data shows the driver was speeding.” Offer no additional commentary, no arguments, and no defensiveness. A fact is a fact.
Reject accusations cleanly and concisely.
If a question implies blame unfairly, reject it without embellishment. For example: “No, I disagree with that assessment.” This approach forces the opposing attorney to clarify rather than giving them an open door for follow-ups.
The Real-World Impacts Are Lower Settlement Costs
The difference between pivoting and embracing facts is measurable in financial terms. When witnesses follow the embrace-and-reject strategy, cases settle for lower amounts because the plaintiff’s attorney has fewer damaging deposition clips to leverage. Expert litigation consultants can help train and prepare witnesses to navigate depositions and use these techniques successfully.
Defense attorneys who have successfully implemented this method report multiple benefits, such as stronger negotiating positions at mediation, lower overall settlement costs, and more confident and composed witnesses who are prepared for trial.
Avoid Nuclear Settlements With Courtroom Sciences
While pivoting at deposition might seem like a savvy strategy, it is a high-risk, low-reward approach. A witness attempting to sidestep tough questions inevitably hurts their credibility and gives opposing counsel ammunition that drives up settlement demands.
For defense counsel, instructing a witness to pivot may seem empowering, but experienced attorneys recognize that this sets witnesses up for failure against skilled cross-examiners. The Embrace and Reject methodology consistently leads to settlements below initial demands, preserving strategic advantages while protecting witnesses from fatigue-induced mistakes.
The better approach is to embrace unfavorable facts directly and reject accusatory questions cleanly. Defense teams can drastically improve their litigation outcomes by working with behavioral consultants and training witnesses to avoid pivoting and instead adopt a composed, fact-based approach.
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:
● Witness pivoting undermines credibility with jurors and creates vulnerabilities skilled opposing counsel will exploit at deposition and trial.
● Evasive testimony prolongs depositions, increasing legal costs and creating damaging testimony patterns that harm settlement negotiations.
● Plaintiff attorneys strategically use pivoting footage during mediation to demonstrate witness unreliability, pressuring defendants into higher settlements.
● The Embrace and Reject methodology—acknowledging facts directly and cleanly rejecting accusations— preserves credibility and results in lower settlement costs.
● Even with expert retraining, early pivoting damage typically impacts case outcomes; prevention remains more effective than remediation.