Good Deposition Questions

Not original material. This is an outline of an article by James W. McElhaney (Litigation, Winter, 2000).

  1. Ask short questions. Awkward questions with unusual words make people even more suspicious and less communicative.

  2. Avoid modifiers (adverbs and adjectives). Each one injects an additional idea into the sentence that makes it harder to follow. If the witness doesn’t understand the question, chances are the jury won’t either.

  3. Think of a deposition as a reverse cross-examination.

    1. Open-ended v. leading questions.
    2. Witness does most of the talking.
    3. Witness frequently asked to explain (always ask why).

  4. Break the Rules of Evidence.

    1. Ask the witness for hearsay.
    2. Ask the witness to violate the best evidence rule.
    3. Ask for opinions and speculation.
    4. Go after subsequent remedial measures.
    5. Ignore the rules of character and conduct.

  5. Always look for a motive.

  6. To avoid ambiguity, don’t phrase questions in the negative.

    1. And they never responded? No. Yes. (Which is the correct answer?)

  7. Eliminate ambiguities by asking clarifying questions.

  8. Always ask what the witness reviewed, looked at, was shown, or was told about to prepare for the deposition.

  9. Always assume there is more information.

    1. What happened then?
    2. How did X react to that?

  10. Ask about computer data and e-mail.

  11. Get specific answers, not general rules.

  12. Never take “I don’t know” for an answer.

    1. If you had to go to your office tomorrow morning and find the answer to the question, what would you do?
    2. Did you once know the answer?
    3. Who did you tell?
    4. Is there anything that might bring back your recollection?
    5. Could you have written a memo about it?
    6. Where would it be?
    7. What other documents might have the information?
    8. Where would they be?
    9. What other people might know the answer?
    10. What have you heard about this matter?
    11. Who might know where to find the information?
    12. Do you understand that if you find the answer or remember what it is, you have an obligation to bring it to our attention?

  13. Do a little cross-examination. Find out how witness will respond to leading questions.

    1. Set up situation by going through some of the facts. Then ask, “Under the circumstances, didn’t you feel you had a duty to give this information to the company’s shareholders?” [Risk is that Deponent will be better prepared to answer question at trial.]

  14. Have the witnesses grade their own conduct.

    1. Ms. Reynolds, looking at this series of memos where your sales department kept changing its position, how would you grade your company’s conduct? If you were a teacher giving a letter grade for how they handled this problem – anywhere from A to D, or even F – what grade would you give them?

  15. Before finishing, always ask:

    1. Do you want to change the answer to any of your questions?
    2. Is there anything else I should know about this?

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