The Civil Litigator
| Publication year | 1982 |
| Pages | 1215 |
1982, May, Pg. 1215. The Civil Litigator
Effective examination techniques depend entirely upon the goals counsel hopes to achieve by taking a deposition. Only after carefully considering the purposes of taking a deposition can counsel decide whether or not one should be taken and, if so, how to weigh the benefits and risks of the infinite available choices of types, style, tone, rhythm and order of questions.
Much of the wisdom regarding effective preparation and examination of witnesses at trial also pertains to depositions and is not discussed here. However, because many of the purposes of deposition examination are different than those of trial examination, some techniques are unique to depositions. One or more of the following purposes will likely influence every question counsel considers asking.
One obvious purpose of depositions is to learn facts and opinions and to observe the witness' attitude and appearance. For this, counsel can ask open-ended questions to which counsel does not know the answers in order to follow the witness into the newly revealed areas as the examination proceeds. It may be helpful to take notes during a narrative response so that counsel can ask specific questions about each important new piece of information.
The witness will be more likely to remember and reveal facts if he likes you and feels comfortable. Introductory courtesies such as introducing yourself, the stenographer and other persons present, and explaining the deposition procedure will help.
Witnesses who know generally what the case is about will have a theory about who should win and why, and their
theories will probably be supported by facts which counsel should know. Questions such as, "Do you think water could have leaked on the warehouse merchandise stored in the basement?" may be objectionable at trial of a damaged-goods case, but proper in a deposition to uncover facts that would otherwise not be known, such as, "Yes, because there was a hidden trap door directly over where the merchandise was stored." Witnesses with no personal stake in the lawsuit or the testimony are usually proud to tell and support their theories; antagonistic witnesses frequently want to explain and support their theories to try to persuade counsel (and his client) to drop the case. Open-ended questions about what they really think of the lawsuit may uncover precious information
Keep in mind that even if counsel's sole purpose is discovery, if the circumstances are right, the deposition may be admissible at trial under Rule 32. Therefore, there is always the risk that rambling responses to open-ended questions will come back to haunt you.(fn1)
Be sensitive to every verbal and nonverbal clue. A witness' failure to answer exactly the question put, or his request to consult with his counsel before answering, often signals that you are on to something important. If a witness talks to someone-other than his attorney during a break, ask him about the conversation. Train yourself to watch the witness' eyes and body for signs of discomfort with the pending question or answer and for clues that he wants to say more.
The open-ended questions technique is treacherous if counsel's goal is to create a transcript which will be admitted into evidence at trial and will persuade the fact-finder. To achieve this, you must know, to the extent possible, the answer to each question before you ask it, just as if you were at trial. However, unlike at trial, you can take the time necessary after each answer to construct a focused, persuasive question without regard to the effect of speed and...
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