Deposition Questions

By Quintin Lucas
Law Office of Ron A. Stormoen

The deposition is likely the first time you get to communicate with the opposing party or a witness. It is also an exceedingly valuable discovery tool. These two situations cause depositions to be very stressful as you try and stay focused to ask the precise questions you want answered. Working against this is the nature of depositions as  real time and conversational. You have to maintain the balance of flowing, natural conversation with precise questioning. After all, the last thing you want is a great answer, to a muddled question that requires two pages of context and explanation to use. This has been a personal struggle of mine, especially when you have an evasive deponent or  obstructive opposing counsel. Fear not though, because with careful planning,  you can always have the exact question you need. 

For all depositions, know the reason you are taking the deposition. If this is a fact finding deposition, precise questioning may not be your highest concern. Contrast that with deposition where you want to set up a Motion for Summary Judgment and need one or two very careful precise answers. This will help you to focus on where you need to go and how much time you need to get there. 

If you are unsure, or your deposition requires a bit of both, I always recommend starting with the list of elements you need to prove the main claims or defenses. This should give you some ground work to build up to the critical questions you need answered. 

Next, carefully draft verbatim how you want the questions to come out. For this you need to consider in what context you are going to use it. At trial, you will have more ability to lead into the question, building momentum as you go. The jury will already be familiar with some of the background facts, times and places so it may be okay to make the question a bit more loose. The important part here is to try and match the question at the deposition as close as you can to what you plan on asking at trial.  

For motions, however, you want the question and answer to be as self-sufficient as possible. This could include dates, details, times of day, or full names. In these instances you need to make sure that you are not using pronouns or vague terms like “the vehicle.” This can seem clunky at first, and it can be. Getting this right in one question at the deposition though, is far less clunky than having to refer to 5 pages to define exactly what car you are talking about on what day.

You also want to phrase the questions to get as simple an answer as possible. While exploring the facts it is fine to be more open ended. This can help open other avenues for questioning. However for your key questions, you want simple answers. 

Once you have these questions, you need to plan a path to the question. Consider what questions you need to ask to get to your target. Again, this should mirror the questions at trial, so thinking about it at this juncture is a great use of your time. Make sure you place the person where they need to be and at the time they need to be there, before you ask the question. 

In this build up, ensure you have the specifics down. This should help lower the possible objections you will draw, and get rid of any confusion (feigned or otherwise). This is where careful listening and note taking will come in handy.

Once you have asked the question, make sure you get it answered as you asked it. Chances are if you think it is an important question, opposing counsel also knows it is important. They may throw objections out there, and you need to push through them. Do not engage, just make sure the deponent answers the question. If the opposing counsel attempts to rephrase the question, for the deponent, ask it again how you want it answered or have the court reporter read it back. 

If you are lucky, you get a direct answer to the question. Good or bad, you at least have the answer. In this instance make sure that you are mindful of the “question too far.” You may very well get a clear, clean, unequivocal answer. If this is the case, leave it alone, put your poker face on and move to the next line of questioning.  

More likely though, the answer will be equivocal or evasive. In this instance you want to make sure you close the question out. There are enough follow up questions to write another article. But the important part is to bind them to their answer as much as possible. 

This all sounds great in practice, but remember that this will be in the middle of a seven hour deposition. You will be having an ongoing conversation with the deponent. This is why planning and building up is important. Suddenly changing your tone or manner of speaking in the middle of the deposition may clue a deponent in on the importance of the question that they may not have figured out. Similarly, an opposing counsel asleep at the wheel may suddenly spring to if the tone shifts too suddenly. 

Apart from those issues though, getting too conversational may make you ask the important questions too casually. What you understood as a clear question, is actually full of references, pronouns, and half questions. This will have little impact when you actually need it. 

Remember there is a lot to keep track of in a deposition. You need to spend ample time preparing, while also not getting so married to a script that you avoid capitalizing on deponents answers or not following up leads. By preparing your most important questions ahead of time, with careful planning on how to get to them, you can alleviate distractions and getting too conversational when you absolutely need the careful lawyer question.


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