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To understand how bad questions can ruin your depositions, consider the anatomy of a good deposition question.
The Good Deposition Question Is Simple
There are many benefits to simple questions. Simple questions, which are usually short, are easy to comprehend by the witness, by others who read the deposition, and by a jury if you use the exchange for impeachment at trial. Simple questions are also more difficult for the witness to evade and move the deposition along.
Simple does not mean your deposition question deals with a single fact. At a deposition, you often want to ask open-ended questions that call for the witness to answer expansively, touching on multiple facts such as “what happened next?”
Your questions should also be simple grammatically. If your questions are short, they are probably simple enough. Longer questions that contain numerous clauses will make it difficult to communicate with the witness or to use the transcript in a motion or at trial.
There are exceptions to the general rule of simplicity. In a document-intensive deposition, your questions might expand in length to incorporate quotes from documents. When deposing doctors or other experts, your questions might become more complex as you ask questions about technical topics.
Generally, however, complex cases do not call for complex questions. You could even argue that topics of greater complexity call for questions of greater simplicity. After all, if you use the deposition later in a motion or at trial, you will want the deposition to be simple enough so that both judge and jury can understand.
The Good Deposition Question Stands Alone
Reviewing the transcript later, you should not have to turn pages to figure out the topic of inquiry or the meaning of the question and its answer. If so, the deposition will be less useful for impeachment and other purposes. Use these two rules to make your transcript easy to follow after the deposition.
- Refer to third parties in your questions by names, not pronouns. Not “she,” but “Dr. Smith.” Not “he,” but “Bill Jones.” It might seem odd to do this question after question, but it’s the best practice in a deposition.
- If your question refers to an exhibit or other document, identify the exhibit or document specifically within each question.
The Good Deposition Question Exerts Maximum Control Over a Witness
You, not the witness, should be in control at a deposition. Ask open-ended questions when you want to encourage the witness to cover a lot of ground that you can explore later. (If the witness was well-prepared for the deposition, ask several open-ended questions in a row — “And then what happened?” — to get over the witness’s reluctance to volunteer.) Ask leading questions to pin the witness down, then ask sweeping-up questions to box the witness in. (“Is there anything else you remember about the meeting of August 8?”) If the witness doesn’t answer your question the first time, ask the same question again.
The Good Deposition Question Withstands Form Objections
This is corollary to much of what has come before. A good deposition question will not be subject to a valid form objection. That means your question isn’t vague, isn’t compound, and isn’t argumentative. A good deposition question is precise, is grammatically correct, and isn’t susceptible to multiple meanings. The good deposition question does not contain excessive negatives. Example:
Wrong: “Unless I’m not understanding you correctly, you don’t agree with me that you didn’t give notice before December 23?”
Right: “It’s your testimony that you gave notice before December 23, correct?”
As simple as these tips might sound, they are often violated, especially in the heat of a deposition when lawyers are trying to juggle multiple lines of questioning. Depositions are often fraught with tension, and when they are, it becomes more difficult to ask good questions.
If asking good questions becomes a habit, on the other hand, you will reap the benefits immediately. The witness will answer the precise question you asked, rather than a question the witness is pretending you might have asked. Your depositions are likely to be shorter and more effective. Your skilled questioning technique — asking clear, concise, and useful questions on the fly — will put opposing counsel on immediate notice they are not dealing with a novice. As a result, opposing counsel will be less tempted to obstruct your deposition with invalid objections and time-wasting bluster.
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