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Deposition Questions You Should (Almost) Always Use

by Cyclone Covey

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Deposition Tips

Standard Deposition Questions

If you're a litigator then once you've been in practice for a while you will have taken depositions in lots of cases, covering lots of different issues, from many different types of witnesses. You will start to develop patterns, and you'll learn what kind of deposition questions work best in certain situations. Although there are exceptions, there are several deposition questions you should always ask because they almost always provide some kind of useful information.  These standard deposition questions cover the following topics:

  1. The witness's arrest and conviction record.
  2. Whether the witness has ever testified in a case before
  3. How the witness prepared for the deposition, including what documents the witness reviewed.
  4. (If the witness is not a party) what the opposing party's lawyer told the witness before the deposition.
  5. (If the witness is a party) whether anyone else was in the meeting when they met with their lawyer (breaking privilege).
  6. The witness's social network accounts - which ones they have, URLs, etc.

Other sites have published blog posts that cover these standard deposition questions, and they do a good job of listing the questions and explaining why you should ask them.

Deposition Questions

Question Everything?

The Best Deposition Questions

The standard deposition questions are good, and you should use them whenever they may be appropriate.  But there are two deposition questions that you should (almost) always ask.  The first question is "why?"  Here's the reason:

If you are deposing someone then most of the time that witness is adverse to you.  In that case you are cross examining the witness.  Lawyers are taught to never ask "why?" at trial.  That's generally good advice - for trial.  That is because at trial you cannot control what the witness will say when you ask the open-ended "why" and you can get burned.  But a deposition is different.  That is because you have time to prepare your case after the witness has given their answer to "why?"  At trial it's too late.  During depositions it's not.  And you need to know "why" if you can because (a) the explanation may help you, and then you can use leading questions at trial to get to the same beneficial answers, or (b) if the explanation is not helpful then it's likely that the opposing party will present the "why" during their case. Knowing about the information during discovery gives you time to determine how to counter the negative facts or impeach the witness.

The second best question is "Is that all?"  This deposition question closes the door to prevent the witness from adding on to their answer later.  Any time the witness gives an explanation on a topic you should try to close the door to prevent future adjustments or additions to the questions, particularly if the answer is helpful to you.

The Exceptions

There are exceptions.  First, you should not ask why if you are taping the deposition and the tape will be shown at trial in lieu of the witness testifying again.  In that case you will not get another opportunity to cross examine the witness so your ability to handle bad answers to the "why" question is much more limited.  Second, you shouldn't ask "why" if you have good reason to suspect that the opposing party will not present the "why".  Usually this scenario occurs when you are deposing a fact witness who is roughly neutral to both sides.

You should also be careful not to close the door if the witness gives you a great answer but you suspect, based on your interactions with the witness during the deposition, that your "is that all" question will invite the witness to "clarify" their answer in a way that will water down their previous response.  So it is a judgment call.  If you can close the door successfully then do it.  If you can't close the door, or fear that your attempt to do so will muddy the waters then it's best to leave well enough alone.

Prepare

The best way to succeed with your depositions is to prepare and be ready for the most likely responses from your witness.  If you keep in mind these deposition questions then you will ensure that you have a useful deposition transcript for trial.

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