0 Comments Published on December 10th, 2014 by Cyclone Covey
Open Ended QuestionsHere is an example transcript with open ended questions. The first questions are not very heavy hitting, but notice how this line of questioning gives the witness more control over the responses.
Q: Did you have access to the supply cabinet? A: Yes. All employees do. Q: Did you ever use the supplies? A: Sure. Everyone did. They were there for us to use. Q: Did you take any of the supplies outside of the office? A: Sometimes maybe. Q: How often? A: Not very often. Q: What kinds of things would you take out of the office? A: Just a few supplies. Not much. The value was minimal. Q: Did you know that taking these supplies was prohibited? A: No
Leading QuestionsNow let’s look at the same line of questioning with leading questions. The witness could always disagree with the questions, but leading questions are more forceful, and they suggest to the witness you know the facts. Many witnesses will agree with facts that you state if you phrase the questions as leading questions. This technique will give you a much better transcript.
Q: You had access to the supply cabinet didn’t you? A: Yes. All employees do. Q: You used these supplies for your office work, correct? A: Sure. Everyone did. They were there for us to use. Q: But you also took the supplies outside of the office? A: Sometimes maybe. Q: You took supplies from the office at least once per week every week for the last 3 months didn’t you? A: I didn’t keep track, but I guess so. Q: You took boxes of supplies out of the office, right? A: Just a few supplies. Not much. The value was minimal. Q: You knew that your company expressly prohibited taking supplies outside of the workplace, right? A: NoThere are a few other points to note here: First, when you ask leading questions be sure to give details and avoid “wiggle words”. The question “You took supplies from the office at least once per week every week for the last 3 months didn't you” is preferable to “You took supplies frequently”. "Frequently" is ambiguous and leaves room for interpretation and debate. Specific times and amounts are better. Second, when the witness is unsure they are more likely to agree with your assertion when the question is leading and the witness perceives you to know the facts in detail. Third, in the open-ended example the witness’s answer to the penultimate question was generally responsive (Q. What kinds of things would you take out of the office? A: Just a few supplies. Not much. The value was minimal.) In the leading example the same answer was much less responsive because it isn't clear if the witness agreed or disagreed with the assertion in the question. (Q: You took boxes of supplies out of the office, right? ) A good lawyer would repeat the question again to attempt to get the witness to agree with the assertion in the leading question. This is another benefit to the leading questions: it forces you to follow up and get specific Yes/No responses to specific details, which is much more valuable than generalities like “just a few” and “not much” Finally, the answer to the last question was the same, but the assertion made in the leading version is more forceful and it subtly implies facts that were not implied in the open-ended version. Of course at times open ended questions are necessary, because you might really need to know what happened. Maybe you truly don’t know where the deponent went after work every day. But when you've set your target up properly beforehand, and you know already what you want the witness to say, if you ask the leading question, you have a few benefits:
- If the witness agrees with you, then they’re agreeing with YOUR version, YOUR phrasing, YOUR characterization of facts.
- You take charge of the deposition, because you’re the one who’s asserting what’s happening.