Where Do I Start?
Before we get to the how, we must deal with the what. Understanding of question form and technique is useless without the backing of substantive knowledge. You must know what you’re going to ask before you can consider how you ask it. You also need to know procedure and evidence to be successful at taking depositions. A deficiency in any one of these areas will create obstacles for a successful resolution of any case.
So study, study, study. Read the rules of evidence and procedure from start to finish. They contain important information about how depositions work and how evidence is presented at trial. The procedural rules define how depositions are conducted, and how participants are expected to act. They are user-friendly, and they provide an outline of important concepts. Read, read, read.
You must also study your case, ensuring that you understand all claims and defenses. Prepare a proof chart at the beginning of every case, defining the elements of claims and defenses and identifying available proof sources. Your chart will be a work in progress throughout the case, as you learn more about the facts. Consider where you will find facts—and ultimately evidence—to prove or disprove elements of claims and defenses. Your proof chart will almost always suggest a need for depositions as well as the topics you will need to cover with various witnesses.
As you work on your proof chart, consider how you will explain to a trier of fact what your case is about (your factual theory), what claims and defenses you will present (your legal theory), and why the trier of fact should rule for you and feel good about it (your persuasive theory). Your theories will ebb and flow as you learn more about the case and you determine whether the facts support your hypotheses. But you have to start somewhere.
Depositions are not exercises in aimless wandering; their purpose is to question witnesses for reasons that are ultimately defined in some way by a claim or defense. Now, it is true that the scope of a deposition is limited by the concept of discoverability, not relevance. Discoverability is typically defined as relevance plus information reasonably calculated to lead to the discovery of admissible evidence. So, you can ask broader questions at depositions than you can at trial, and you can elicit hearsay. It may not be admissible, but it may lead to other evidence that is admissible. But don’t be lulled to sleep by breadth. Depositions should always have a purpose.
Be Ever Curious
Depositions help you confirm information you think you know and learn information you don’t know. The key is not to let what you think you know overwhelm your fact-finding. Here’s what happens: the witness answers as you thought he might. You feel great because the witness has proved you correct. Here’s the problem: there may be more information that you didn’t anticipate. You leave it behind because you allow your expectations to define the scope of the witness’s answer.
So here is your rule of thumb: Be ever curious. Do not stop seeking information until there is no more information to seek. How do you know when that is? When the witness confirms it. You must keep asking for more information until the witness confirms that there is nothing more to tell you in response to your question. Let your working theories assist your questioning, not limit it.
Question Form and Technique
So how do you ensure that you get all the information there is to get? You ask good questions and you keep asking good questions until you are done. To do so, you must understand and be able to identify the various types of questions that exist. When you think about it, so many of our conversations as lawyers involve asking questions, including when we learn about facts from our own clients. But in the deposition setting, it is critical that we consider question form and technique. Questions are the building blocks on which we construct our cases. Study this subject, learn about it and embrace it, and you’ll be miles ahead in your quest to take good depositions. There are three types of questions.
Open-Ended Questions
Open-ended questions are the classic “reporter” questions: who, what, when, where, why, describe, tell us, explain, and how, to name a few. Open-ended questions seek a narrative from the witness and have the advantage of making the witness do the work for us. They are short and to the point: “What happened at the meeting?” We ask, but don’t tell the witnesses. They tell us.
A good open-ended question is short and to the point. But, sure enough, inexperienced questioners are uncomfortable with the brevity of open-ended questions. Fight this discomfort. It is somewhat counterintuitive, but the shorter the question, the more powerful it tends to be. Let’s briefly explore the ways in which open-ended questions are diluted.
First, we have “front-loading” a question. The front-load has its origins in the societal tendency to qualify demands for information. We don’t walk up to a stranger and demand: “Where is Main Street?” Instead, we qualify our demand for information with words that are generally understood to make it more courteous: “Can you tell me where Main Street is?” “Could you tell me where Main Street is?” “Would you tell me where Main Street is?” We know that these qualifiers are unnecessary, because if the listener can’t or won’t tell you where Main Street is, they would so answer in response to your question, “Where is Main Street?” Nonetheless, there is a clear societal standard that we couch our requests with these qualifiers.
Our language as lawyers must be more precise. Consider that our question and answer format conversation is ultimately going to be heard by a trier of fact who knows little or nothing about the case. The more we front-load our questions, the harder the listener must work to determine the substantive purpose of the question. And the harder we make the jury work to understand, the less likely we are to persuade them.
So here’s the thing: the witness can, could, and would answer your questions. That’s why she’s in the witness chair. No need to keep asking her! If she doesn’t know the answer or can’t answer the question, she’ll tell you. So leave your layperson language at the door and lose the front-loading. It is unnecessary and unhelpful. Here’s a rule of thumb: ask yourself what you want to know. You will seldom front-load the answer that forms in your head. Rather, that answer will almost always suggest a strong open-ended question. Pause, give it some thought, and then ask what you want to know.
The second problem with open-ended questions is the back-load. This arises from our discomfort with silence and our tendency to believe that we know the answer. Here, we direct or suggest answers: “Why did you do that, did someone tell you or did you read about it?” We have to learn to leave the root question alone. Directing the witness with a back-load may limit the information we receive, so just ask the simple question: “Why did you do that?” and let it be. Let the answer go where it goes. You may learn something you never expected to learn.
Setting up and using open-ended questions. Now that you know what a good open-ended question sounds like, consider that it often requires some set up. For this, I return to that basic maxim from trial advocacy: set the scene, roll the action. In a deposition, setting the scene before rolling the action has the added benefit of taking the witness back to the time and place of important events. Scene-setting questions cause witnesses to form mental pictures of events, which in turn may prompt a more complete description of what occurred. From our standpoint, setting the scene allows us to use simple, open-ended questions to obtain a wealth of information.
Here’s what you do. When you ask about meetings, phone calls, conversations, communications and events, to name a few, find out first where it occurred, how long it lasted, who was there, who listened in, when it happened, etc. Once you set the scene, roll the action with a solid open-ended question such as: “What happened at the meeting?” You can then continue to explore what happened by asking for more and more information: “What else happened at the meeting?” or “What happened next at the meeting?” Stay on task. You may hear about things you want to ask more about. Write them down and keep asking about your root question. When you think the witness is done, you can ask, “Did anything else happen at the meeting?” Then consider asking about things you thought he might tell you, but didn’t, probing and testing to determine whether there is additional information. You should always confirm that the witness is done: “Have you now told me everything that happened at the meeting?” This technique is one that has been advanced for many years by the National Institute of Trial Advocacy (NITA). NITA calls this “funneling,” and it is very effective in helping you develop a list of information. When you exhaust your root question, you can go back and ask about specifics. For example: “You said you discussed X at the meeting; please describe everything that was said about X,” followed with, “what else was said about X?” etc.
Leading Questions
Leading questions are short, declarative statements of fact. Leading questions contain no modifiers, conclusions, or argumentative phrases. They are very short, typically asking about one fact at a time. Strung together skillfully, leading questions can be used effectively to tell a story. Leading questions are typically used for cross-examination at trial. They are at the other end of the spectrum from open-ended questions. We don’t ask. We tell. We seek the witness’s agreement to our statement. So, we do not use leading questions to obtain information, because it would be terribly inefficient. Rather, we lead deposition witnesses to confirm, shape, and summarize prior testimony or facts so that we can effectively use them in motions or to impeach the witness at trial. For example, to confirm what you learned about the meeting, you might ask a series of questions, seeking the witness’s confirmation to each one: “You went to the meeting.” “It lasted four hours.” “There were 10 people there.” “You discussed the contract.” You get the idea. Tell, don’t ask. Build your sound bites for later use in motions or at trial.
Closed Questions
A closed, or “one-fact,” question genuinely seeks information about a particular fact. “Did you go to the meeting?” “Were you in the crosswalk?” These questions generally limit the witness to a yes or no answer and thus are not open-ended. But neither are they leading, because they ask and don’t tell. Nonetheless, like leading questions, they seek small bits of information and thus are not nearly as effective or efficient as open-ended questions. But closed questions can be used effectively to confirm a particular fact, or as headnotes to lead you into a scene-setting series of questions. Rather than saying, “Let’s talk about the meeting,” ask the witness, “Did you go to the meeting?” Everyone’s attention is thus directed to the meeting. You can then set the scene as suggested above, concluding the sequence by rolling the action with a good open-ended question and some disciplined follow through.
Because they genuinely seek information, closed questions are not considered to be leading. However, closed questions can be substantively leading if they are misused to suggest answers to a friendly witness who is floundering. Judges are not at all appreciative of such tactics, so don’t misuse closed questions.
Closing Thoughts
Good depositions start with careful study, solid legal research and analysis of claims and defenses, and diligence in formulating theories of the case. The first step in preparing for any deposition is deciding what to ask. The second step is deciding how to ask for the information. To succeed at depositions, you must have command of question form. You don’t ask leading questions if you are fact-finding, and you don’t ask open-ended questions if you are seeking admissions. Become a good questioner by practicing asking questions out loud. Literally. Shut your office door and practice by examining things in your office. “What are you?” “I’m a chair.” Then, “You are a chair.” “Yes.” Build auditory muscle memory so that you can quickly recognize and form questions that are appropriate for the task at hand. As they say in ice hockey, it’s all about reps, and so it is with asking good questions at depositions.
