Echoing is a common and often used concept in daily communication, often without being consciously recognized. The rationale behind echoing is that these verbal and non-verbal behaviors help to build rapport with the questioner and encourage the speaker to provide additional information. Within the context of legal depositions, echoing can similarly have a strategic advantage…for a skilled cross-examiner to get an unsuspecting witness to provide more information than is necessary. 

Echoing's versatile nature introduces a layer of complexity in witness preparation for depositions, leveraging a questioner’s seemingly genuine and gentle character to elicit information beyond the initial scope of the witness's planned testimony. In other words, this is classic “Mr./Ms. Nice Guy/Gal” approach to questioning a witness at deposition. It is indeed using honey to catch flies, but far more sophisticated. Employing a “mirroring” approach, questioners utilizing echoing techniques establish a sense of camaraderie and understanding, prompting witnesses to lower their guard and share sensitive or additional details. The questioner then conditions the witness via positive reinforcement strategies to encourage continued divulging of information throughout the deposition . This seamless integration of echoing tactics in depositions can lower witnesses’ defenses, potentially compromising the accuracy, effectiveness, and reliability of their testimony. This can lead to nuclear settlements at mediation and catastrophic verdicts at trial for defendants. 

Importantly, echoing has seen successful implementation in contexts that require trust-building and open communication. Notably, in conflict resolution settings, echoing fosters empathy, enabling conflicting parties to engage in constructive dialogue by reducing defensiveness. Similarly, in high-stakes hostage negotiations, echoing fosters an atmosphere of trust, encouraging hostage takers to divulge critical information, thus facilitating peaceful resolutions. Additionally, within the competitive sales industry, echoing serves as a persuasive tool, fostering rapport and open discussions, leading to successful business negotiations. Simply put, echoing is a proven and powerful psychological tool. 

Understanding Witness Vulnerability at Deposition

In the context of witness preparation, the focus remains on equipping individuals to withstand the pressures and intimidations often associated with aggressive cross-examination tactics. 

These aggressive tactics can trigger survival reactions, also known as “amygdala hijack,” which can thereby lead to damaging testimony. During amygdala hijack, witnesses abandon the deposition game plan generated during preparation sessions and answer questions with the goal of defending and protecting themselves. The heightened sense of vulnerability brought on by these aggressive tactics can manifest as fight, flight or freeze reactions: witnesses may adopt argumentative or evasive “fight” postures like “yes, but…” pivoting responses, pacifying “flight” postures like “wait, let me explain…” responses, and paralyzing freeze responses like “yes, yes, yes.” 

All these responses, and “pivoting” in particular, have been shown to be highly ineffective at deposition.  Such responses often open a new “can of worms” that exposes the witness, and subsequent witnesses to further attack.  

Most defense attorneys already devote time to educating witnesses about the dangers of aggressive cross-examination tactics, instructing their witnesses that “less is more,” “only answer the question asked,” and “don’t volunteer information.” They may not devote enough time to preparing witnesses for the insidious effects of echoing, where seemingly benign inquiries can extract excessive details beyond the witnesses’ intended scope. Witnesses’ baseline neural wiring makes them highly vulnerable to these kinds of tactics. Understanding the psychological underpinnings of echoing is crucial in preparing witnesses to navigate the intricacies of depositions effectively.

Unveiling the Deceptive Impact of Echoing at Deposition 

While aggressive cross-examination tactics may overtly coerce witnesses, the subtlety of echoing techniques introduces a new, covert layer of manipulation. By adopting an amicable and empathetic facade, questioners employing echoing tactics create a false sense of rapport and trust, inducing witnesses to reveal more information than warranted. Echoing can lull witnesses into a state of complacency, fostering a false sense of security that encourages them to divulge sensitive details, ultimately compromising the effectiveness of their testimony.

How echoing works:

The questioner repeats the last word or last few words spoken by the witness and changes the tone of the words from a statement to a question by raising the tone of their voice slightly at the end, and then pauses, which gives the witness a chance to provide the additional information. 

Cross-examiner: “Does the company value safety?”

Witness: “Safety is very important to us, yes.” 

Cross-examiner: “Important?” (curious tone, followed by pause)

Witness: “Yeah, it is one of the top priorities at the company. We want to always ensure a safe environment for our employees and customers. We do everything we can to put safety first.” 

Cross-examiner: “I see; that makes total sense – both employees AND customers; got it.” (positive tone, nodding head in agreement)

Witness: “And we’ve developed safety training programs and policies to make that happen.”

Cross-examiner: “Programs…and policies…got it.” (positive tone, nodding head in agreement)

Witness: “And we now have monthly safety meetings too, ever since this accident.”

When the cross-examiner asked, “Does the company value safety?” the witness should have said, “Yes”—nothing more. However, as you can see, the deceptive nature of echoing lulled the witness into volunteering potentially damaging information and raising the standard of care to include “everything we can to put safety first.” The witness also increased the deposition length because the cross-examiner now has additional lines of questioning related to the safety training programs, policies, and meetings. One may argue that the cross-examiner may have eventually gotten to the follow-up questions, but that is not always the case in depositions.

As a result, witness preparation strategies must not only equip individuals to withstand aggressive tactics but also empower them to recognize and respond to the subtle manipulation inherent in echoing, ensuring the integrity and accuracy of their testimony. Otherwise, the witness will be “singing like a canary” for the entirety of the deposition, which is not in their best interest and not required of them while under oath.  

Empowering Witnesses Against Covert Manipulation

Witness preparation for deposition must involve providing individuals with comprehensive strategies to recognize and respond to echoing tactics. By providing insights into the psychological mechanisms at play, witnesses can maintain focus, composure, and clarity during their deposition. The focus lies on a three-step process of preparing witnesses to effectively handle echoing techniques, while ensuring the integrity and credibility of their testimony:

1.  Education – Teach witnesses the basic principles of echoing, emphasizing the questioners use of mirroring techniques to acquire more information. Also show how and why these techniques are highly effective in other fields, particularly sales, to “get what you want.”

2.  Demonstration – Let witnesses see how echoing works by showing them deposition videos or transcripts of attorneys using echoing techniques successfully. You can also role play with a colleague to demonstrate how it works.

3.  Simulation – Put the witness through mock deposition questioning and bait them with echoing techniques. Use operant conditioning techniques to shape your witnesses’ responses to echoing tactics , as witnesses will need to maintain brevity and precision with their answers. It is critical that witnesses fail in the simulation process, as failure creates the best learning experience.  

Witness preparation seeks to equip individuals with the necessary tools to navigate the complexities of depositions, while upholding the credibility of their testimony. With echoing, the winning strategy for the witness is simple: answer the question directly, then shut up. It is the cross-examiner’s job to ask appropriate follow-up questions to illicit additional information; it is not the witness’s job to freely provide it. However, this is easier said than done, as echoing is a lethal weapon when used against an unsuspecting, novice witness. Additionally, echoing is just one of the many tactics used by cross-examiners to sway witnesses. It is common for questioners to use multiple strategies at deposition to achieve their goals.  

Conclusion

Though echoing can serve as a powerful tool for eliciting information in many fields, its potential for witness manipulation underscores the need for a thorough understanding of its nuances.  

While overt forms of intimidation at deposition must be addressed during witness preparation, the deceptive potential of echoing underscores the need for a more comprehensive approach. By empowering witnesses to recognize and respond effectively to the subtle manipulations inherent in echoing, the integrity of their testimony can be protected.