Let Your Outline Be a Guide, Not a Script
Deposition outlines can be very helpful. They help you get organized and focused for the deposition. But use your outline as a guide, not a script. Just as with questioning a witness at trial, it is critical to listen to the witness’s answer and adjust your questioning accordingly.
You must be willing to put your outline aside and ask follow-up questions that respond to what the witness actually says. If the witness says something you weren’t expecting, that is contrary to the facts, or that just doesn’t make sense, ask follow-up questions.
Don’t be afraid to ask “why?” Depending on the context, questions such as “Why did you do that?” or “Why is that important?” can yield favorable testimony for you. It may sound counterintuitive, but witnesses may not expect or be ready for a “why” question.
Be Clear in Your Questioning
This is the most important tip for taking an effective deposition and making a good record. Avoid asking “lawyer-sounding” questions. Make your question clear, concise, and to the point. For example, if a lawyers asks, “You sent the memo, did you not?,” what does that question really mean? Does “yes” mean “Yes, I sent the memo,” or “Yes, I did not send the memo?” The confusing question leads to a confusing answer. You have the same problem if the witness answered no. Avoid all this by keeping it simple and clear: “Did you send the memo?”
I have frequently seen exchanges like this:
Q: You didn’t have to ask John for permission, true?
A: No.
Q: Do you mean, true, you did not have to ask John for permission?
A: Yes.
This confusion could have been avoided by asking a clear initial question. Why not ask, “Did you have to ask John for permission?” or “Were you required to ask John for permission?”
Be careful with “do you know?” questions. It depends on what you’re trying to learn. For example, do you want to know what the policies are or whether the witness knows what the policies are? If you want to know what the policies are, then ask a simple, direct question: “What are the policies?” On the other hand, if you really want to know whether the witness knows what the policies are, then ask, “Do you know what the policies are?”
The "do you know?" or “do you have any information?” problem is illustrated by this exchange:
Q: So you don’t have any information regarding the negotiation of the agreement, correct?
A: No.
Q: That is correct, or it is not correct?
A: Ask your question again.
Q: Do you have any information regarding the negotiation of the agreement?
A: No, I don’t.
It would have been better to ask the last question first: "Do you have any information regarding the negotiation of the agreement?" It is a clear question, and it produced a clear answer. Alternatively, the first question could have been, "What information do you have regarding the negotiation of the agreement?"
One final example illustrates the problems that can be created by asking questions in the negative:
Q: And you have no personal knowledge regarding what information Julie requested on January 10?
A: No.
Q: Correct?
A: Correct.
Q: Correct that you have no personal knowledge?
A: Yes.
This is an example of asking three questions to ask one question. This exchange could have been avoided by not asking the initial question in the negative. Get to the point. Ask a clear question. Do not try to “sound like a lawyer.” Ask better questions and get better answers and make a better record.
Keep Reading to a Minimum
We’ve sat through many depositions where a lawyer will spend a lot of time reading documents to the witness. We’ve seen lawyers read paragraphs from a contract that fill up more than a page of the deposition transcript only to ask, “Did I read that correctly?” This is a huge waste of time for the witness, for the lawyers, and the client paying the bill.
Think about how you can get the information you need without spending a lot of time reading to the witness. This is especially true if there is no dispute regarding the language in the document you’re asking about. Sometimes it is unavoidable and you have to read a portion of a document. But always consider alternatives.
Don’t Get Mad
It is generally unhelpful to get mad at the witness or opposing counsel. You should be persistent in getting the witness to answer the questions you ask, but getting mad won’t help. Depositions can be tense. The witness is often nervous. You may be nervous too. Be calm, be persistent, be professional, and ask simple, direct questions.
Keywords: litigation, trial practice, young lawyers, depositions, tips for young lawyers