How To Get The Facts To Favor You In A Deposition

BYCyclone Covey2 commentsDeposition Tips

Snapple_Real_Fact_735We all know there are facts, and then there are “facts.” Obviously both sides of any legal issue are going to want the “facts” on their side. So how do you get the “facts” on the side of your client? How do you get the “facts” to reflect favorably on you?

One of the first opportunities you have to get the “facts” on your side is in the deposition. After you’ve had a dialogue back and forth with the witness on a particular issue, attempt to summarize what they’ve said. It may be a summary of their last answer, or it could be a summary of the last couple minutes worth of questions and answers.

The benefit to this is you get to characterize the facts exactly the way you want them reflected on the transcript. And if you’re able to give a good summary of a particular section of testimony, and get the witness to simply say “yes,” then you’re in a great position because you’ve got a perfectly quotable piece of transcript where the testimony is basically you testifying and the witness agreeing to it.

An Example

For example, let’s look at an adaptation from a real-life wrongful prosecution suit.
Q:  So let’s talk about why you were arrested.
A:  Well I didn’t do anything wrong.
Q:  I understand that you contend you didn’t do anything wrong, but I want to know why you think the officer arrested you.
A:  Well I was in the store and I was holding the case [of beer].  I also was holding some other stuff and it was too much so I put some things in my pocket.
Q:  But did you also put several items inside your underwear?
A:  It was in there.
Q:  What was there?
A:  Uh huh.
Q:  Ok let me ask again.  What were you holding?
A:  Peanuts
Q:  Where?
A:  In my pants.  Pocket.
Q:  Pocket or Pants?
A:  Pants.
Q:  Anything else?
Q:  I had gum, skittles, [any many other things].  I was weighed down.

This line of questioning with short questions and short answers for many pages.  The problem is that it becomes hard to read and difficult if not impossible to neatly summarize in a summary judgment brief.  If, however, the lawyer attempted the following then her life would have been much easier at brief writing time.

Q:  Let me see if I understand.  I’m going to try to summarize what happened and you tell me if I have the facts correct.  You went into the store to buy a lot of items.  You had peanuts, skittles, [list all the other items here].  You could not carry all the items  so when you went to get the case of beer you decided to put the other items in your pocket and some of those items might have ended up inside your pants rather than in your pocket.  Is that right?
A: Yes.

The Lesson

This summary condenses the 3-5 pages of testimony into a bite-sized chunk that is easy for the court to understand.  Of course when you attempt longer summaries you run the risk of a single fact being slightly off, which gives an astute witness the opportunity to disagree with you.  But even in that case you have the option to re-try your summary again (and again if needed). Some lawyers will attempt to use the summary to insert incorrect or blatantly skewed facts, and I’m not advocating that approach.  What I am advocating is using the summary as a way to simplify the transcript and also nail down the key facts in a concise and coherent manner.

Doing this, plus asking leading questions, are the two best ways to get something in the transcript and not thinking to yourself “oh I wish the witness had phrased the answer a little differently”…you’re the one phrasing exactly what the court is going to be reading.


Thomas Allen
Jan 9, 2015 at 03:03pm

The deposition transcript is example of questioning a witness that is favorable to the opposing party. Generally you would not depose a friendly witness since they will work with you to prepare for trial. Every US court will allow leading questions for witnesses who are identified with an adverse party or who may be hostile to your case. Federal Rule of Evidence 611(c)(2) states this permission explicitly. Most states have rules of evidence that reflect this Federal rule, or their common law evidence cases permit leading questions of adverse witnesses. Therefore the fact that the question is leading would not be a reason for the court to disallow it when evaluating a summary judgment motion.

Paul Nicolai
Jan 9, 2015 at 02:22pm

Pointing to this statement in a summary judgment brief or trying to read it in court will not work. The question was leading and inadmissible. Even on summary judgment, the evidence has to be admissible.

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