WWWAASSUUP: A Mnemonic for Effective Depositions

What Does the Witness Know?

The National Institute of Trial Advocacy (NITA) advocates the funnel technique for taking effective depositions. The theory behind the funnel technique is that you begin asking questions in the broadest form possible to obtain as much information as possible and then narrow down, cutting off any escape routes until, hopefully, you arrive at a nugget of information that may be of value.

For example, if the witness has told you that she spoke with Jane Brown on a certain day, your first question would be something like "Tell me everything you said to her and everything she said to you." Please note that you do not ask the witness if she "remembers" what she said and what Brown said in return. The "remember" question is a different question because when you are on the information highway, you do not want to give the witness the exit ramp of non-recollection.

Now, in the real world, a person typically cannot recite back conversations word for word, so you will get a response along the lines of "Well, I don't remember every word of the conversation." You then ask, "Well, tell me the exact words that you do remember." Now, at this point, you may get a mixture of exact words along with the gist of the conversation. You then keep asking, "Anything else?" until you have exhausted the witness' recollection.

What Does the Witness Not Know?

Staying with the same example, the witness may respond that she simply does not remember the exact words of the conversation. She may only be able to give you the gist of the conversation. At this point you close the bottom of the funnel by asking "Would it be fair to say that you cannot tell me any of the exact words you said or any of the exact words she said but just the gist of the conversation?" This closes off one escape route for trial. You can use this segment for impeachment should the witness' memory suddenly become clearer at trial and she begin "remembering" exact words.

Where Is the Missing Information?

A witness saying "I don't know" or "I don't remember" should immediately trigger another series of questions. These include:

• "Are you telling me that you never had this information?"
• "Was there a time you did have this information but you have just forgotten it?"
• "If you don't know this information, who would?"
• "If you had to find this information, to whom or where would you go to find it?"
• "Is there a document, email, phone log, person, etc. you could consult to find this information?"
• "Will you be looking for this information that you say you don't know or don't remember between now and the time of trial and, if so, where will you be looking?"

The witness may truly not know or remember. However, if she is using this response to escape providing information, she will learn very quickly that whenever she gives it you are going to then ask several follow-up questions. You will find that the memory of some witnesses will suddenly "improve" at this point.

Ammunition for Request to Admit or Motions

The funnel method also helps you gain valuable information so that you can become what judges want: the "wheat from the chaff" type of attorney. You will gain information that may help you either narrow the issues through a request to admit or narrow the pleadings by a motion to strike or dismiss. In addition, your judicious use of a request to admit, based upon an admission gleaned from a deposition, may save time and expense at trial.

Admissions That Are Clean for Trial

In a past article, I used the phrase "panning for gold." When you are at the top of the funnel you are mining lots of information—only a portion of which is gold. The rest is debris that you really do not need. You will also find that when you are asking the broader questions, there is a tendency to lapse into using pronouns such as "he" or "she" or phrases such as "that meeting."

When you reach the bottom of the funnel, you have to brush off the debris to get to the nugget of gold. There is a big difference between asking, "So, he was at that meeting?" where "he" was identified as "Bob Howard" 10 pages back in the deposition and "that meeting" was defined 15 pages back, and obtaining a clean admission with a question "So, the only other person you met with on August 12, 2015, was Bob Howard, correct?"

Size Up Opposing Counsel

Make no mistake about it, whenever you walk into a deposition, opposing counsel, their client, and your client are all asking themselves whether you have ever tried a case and, if so, whether you are good at it.

Towards the end of my advocacy career, I could tell very quickly whether or not the person on the other side of the table had ever tried a case. Those attorneys who had been in a trial had a single-minded focus on obtaining exactly what they needed for trial, cutting off escape routes at trial, and not wasting time on unnecessary sparring with opposing counsel or posturing for the client. They were the adult attorneys in the deposition room.

Size Up the Witness

A deposition, especially if it is videotaped, is an excellent way to determine the strength of the other side's witnesses. Is the witness going to come off as confident or insecure, direct or rambling, and how will her background compare with the backgrounds of the potential jurors in the case? Is there a certain line of questioning that causes irritation, evasion, or sudden silence?

Understand the Opposing Party's Theory

You have your theory of the case. You believe your theory is the correct one and that there is no possible way any other version could carry the day. However, the deposition is where you must test your theory as well as the opposing party's theory. This is usually done at the end when you have gleaned all of the information you need.

You must examine all the important themes or theories, and test why the witness thinks she is right and you are wrong. You must ask questions such as "Given that you have admitted that you set a fire in your wastebasket to get out of working that day, why do you claim you were wrongfully terminated?" You must learn the answers to these questions in the deposition. To be surprised that the other side has a plausible explanation at trial is not a good thing.

Undermine Escape Routes

You want to make very sure you know which facts the opposing party can prove and which facts she cannot prove. You want to channel opposing witnesses down the highway of information to a destination you have selected. Accordingly, you must barricade any exit ramps on that highway from which each witness might escape. You get them to admit, therefore, that there are no other documents that say otherwise, no other witnesses that say otherwise, and no other sources of information to which one could go to prove otherwise. If a witness indicates that any of these things exist, then you must probe both their existence and reliability.

Production—What Else Do You Need?

The final tab in my trial/deposition notebook was "Production." As I mined information, I kept a running list of other documents I needed or witnesses I needed to depose or contact.

If the witness begins identifying documents you do not have and that you think come under your request for production, it is rare for the other side to agree to adjourn the deposition until those are produced. That may be a fight for another day.

The most you can do in the case of documents that you think should have been produced or new documents that you did not realize existed is to ask a series of questions to lock in the fact that the documents still exist and the witness still has access to them, You should also promise to not delete or destroy the information.

Use WWWAASSUUP as a helpful mnemonic for effective deposition techniques. Happy digging!

Mark A. Drummond is an associate editor for Litigation News and associate circuit court judge of the Eighth Judicial Circuit of Illinois.

Keywords: deposition, tips, deposition preparation, young lawyer

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