The Top 10 Killer Deposition Questions

One of the prime reasons to spend the time and money to depose an adverse witness is to gather impeachment material.

  Other than hiring a private investigator to delve into the witness’s past, the deposition is the most effective tool in the lawyer’s arsenal for uncovering dirt and chipping away at credibility.  That includes attacking an eye-witness account, challenging an unfavorable opinion, exposing bias, and undermining believability.

Yet most lawyers don’t ask all of the basic, open-ended questions that could help achieve their impeachment goals.  In every deposition, there are questions tailored to the facts of the case, whether it is a business dispute or personal injury claim.  But many (if not all) of these “killer” questions should be asked of adverse witnesses in every type of case.  Many times you will strike out.  That’s okay, because when you do connect with one of these questions, the result is likely to be a solid base hit – and occasionally a grand slam.  The answers to these basic questions can be so damaging to the opponent’s case that the litigation will end on terms favorable to your client.  And isn’t that the goal?

So here they are – the Top 10 Killer Deposition Questions

:

• “Have you ever been arrested?”  (And the follow-up:  “Have you ever been convicted?”)  Opposing counsel may go ballistic on this one, but it is a proper question.  Remember, felony convictions and any convictions for fraud, dishonesty or moral turpitude are generally admissible for impeachment.
• “Have you ever been deposed before?”  I ask this at the beginning of the deposition, as part of the standard admonition, when it sounds like an innocent inquiry related to the ground rules for the depo.  But if the answer is ”yes,” I always follow up later with questions about the prior deposition(s).  I also ask the related questions, “Have you ever testified in court?” and “Have you ever been a plaintiff or a defendant in another lawsuit?”  Prior testimony and lawsuits can be a treasure trove of accusations and impeachment.
• “Have you ever seen the [plaintiff/defendant/employee] before the events related to this lawsuit?”  This question may uncover connections between a supposedly independent witness and the other side.
• “Did you meet with the other side’s counsel before this deposition?”  Pin down the number of meetings, where they occurred and how long they lasted.  This information can help dismantle the claim of independence.
• “Have you signed any written statements/made any recorded statements/spoken to any reporters about the events related to this lawsuit?”  To this list, you might add:  “Have you posted any statements about these events on any internet site?”  Of course, you will have conducted a search engine and, perhaps, database query on the witness as part of your preparation for the deposition, so you’ll know if he or she is lying.
• “Did you read any witness statements or depositions, listen to any recorded statements, look at any diagrams or photographs, or did somebody else read you any statements before the deposition?”  Okay, this is more than one question, but I had to combined them here to meet the 10-question quota imposed by the title of this article.
• “Tell me everything you did to get ready for this deposition.”  The answer can lead you to what the witness or opponent perceives as his or her weak spots, including areas of which you were unaware.  After all, it is only natural to prepare for the hardest questions or topics.  Remember to find out the specific documents reviewed, places visited and persons met with by the witness.
• “Was anyone else present when you met with your lawyer?”  If a third-party was present during the meeting, the witness may have waived the attorney-client privilege.
• “How did you find your attorney [doctor/chiropractor/therapist/expert]?”  This can lead to interesting prior legal issues, lawsuits or self-interest/improper involvement on the part of opposing counsel.
• “Do you have your driver’s license with you?”  If so, ask to see it.  Take down the personal information and, if appropriate, read it into the record.

That’s my “top 10″ — or so — general questions designed to uncover dirt.  Remember, there’s more to taking a deposition than impeachment.  For more depo tips, read Preparing Your Client For Deposition in Lit Tip Of The Week.

For honing overall deposition skills, I recommend two courses: the National Institute for Trial Advocacy “Deposition Skills” Training (17+ hours) and Robert Musante’s “Take A Killer Deposition” (full-day course).  I’ve taken both courses and received nothing in return for these recommendations.

About Newdorf Legal – a California
Business Litigation Law Firm

Newdorf Legal is the go-to small firm for big problems. When business executives and public officials face complex legal challenges, they turn to David Newdorf for advice and representation. The firm’s lawyers have significant experience in the private and public sectors handling high-profile litigation. Newdorf Legal provides business and public entity clients expert advice and representation in:

• business litigation
• commercial disputes
• California breach of contract lawsuits
• business torts/interference with contract
• real property litigation
• joint venture/partnership issues
• investor lawsuits
• fraud and other civil actions

For a free copy of our informative brochure, “The Top 10 Business Litigation Mistakes . . . and how to avoid them,” contact Newdorf Legal.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

Prepping The Client For The Emotions Of Litigation And Trial

Clients rely on their lawyers for many things beyond traditional legal advice and representation.  On top of the skills needed to engage the court and opposing counsel, lawyers must understand — and more importantly, prepare their clients for — the emotional side of litigation.  This part of the job is rarely covered in trial advocacy training, but the importance of this role was brought home to me at the end of a trial a couple of years ago.  I thought I had delivered an effective argument that defused our opponent’s case.  Instead of the praise I had hoped for, the client expressed her emotional upset at hearing opposing counsel’s relentless attack on her character and conduct.  This was an entirely natural reaction, but not what I had expected.  

Experience had taught me to anticipate and mentally prepare for the gist and force of the other side’s arguments.  I had failed to see things from my client’s perspective and therefore had not helped her to prepare emotionally for this phase of trial.  I haven’t made that mistake since.

The lawyer must take similar care at every stage of litigation.  Clients must be prepped to handle many things that may seem obvious or be second-nature to the trial advocate.  This list includes: 

• The mental exhaustion of testifying at a lengthy deposition.  It is more tiring than most people understand to maintain the mental focus needed during deposition.  Explain the importance of hourly breaks, even when the witness does not feel it is necessary.  The witness may not realize how much the depo took out of him or her until after the depo or later that evening.
• The often slow progress of a case during discovery and the pre-trial phase.  If a case is headed for trial, it can take two years or longer.  This is a marathon compared to the timeline for many business transactions that occur at a sprinter’s pace.  As every marathoner will tell you, pacing and mental preparation are as important to success as physical conditioning.
• The emotional roller-coaster ride of trial, as fortunes appear to shift dramatically from day to day.  As a defendant during trial, you need to tell the client that things will likely appear worse at the outset because plaintiff gets to put his case on first.  For plaintiffs, the client needs to understand the reverse:  defendant is going to have a chance to put on its best evidence after plaintiff rests.

The list goes on and on.  The key is to put yourself in the client’s position so that you can assist him or her to be mentally and emotionally prepared for the task at hand. 

As for the client who opened my eyes to this?  Well, she was vindicated when the jury came back unanimously for her, which compensated for the emotional ups and downs of the trial.  

Begin Your Trial Prep At The End

Where does one start when preparing for trial?  The best advice I ever received on this point came from Judge Charles A. Legge, for whom I was a law clerk in the federal courthouse in San Francisco.  He suggested beginning at the end, that is, the closing argument.

The reason for this is compelling.  In order to argue a point in the closing, the evidence on which the argument is based must be admitted during the trial.  Thus, the logical sequence for trial preparation is to start with one’s anticipated closing argument and from there develop the list of trial themes and evidence (testimony and documents) you will need to introduce at trial.  This list dictates the identity of the witnesses necessary to support your trial themes, provide your testimony and lay an evidentiary foundation for your documents.

The corollary, of course, is that if you don’t need the evidence to support your closing argument, it should not be introduced at trial.  Unnecessary evidence lengthens the trial and, worse, risks confusing the jury.  Extraneous evidence that you don’t mention in your closing could become the seed for a free-lance theory that germinates in the jury room and grows out of your control.

Pick The Best Day Of The Week For Your Motion Hearing

Do yourself a favor. Don’t set your big state court motion for hearing on a Friday. It’s not that judges are itching to get out the door (though that may be true). Fridays are always the heaviest motion day of the week in state court. The calendars are jammed with summary judgement motions because the code requires them to be heard no later than 30 days before trial (which ends up being a Friday).

Try Monday, Tuesday or Wednesday for your motion. On summary judgment, these days also give you up to two extra days to prepare your reply brief. That’s because you have to file your reply brief five calendar days before the hearing. If the hearing is on a Thursday or Friday, the fifth day before hearing falls on Saturday or Sunday (when the court is closed), meaning you have to get it on file by Friday. That short-changes you by one or two days. The same calendar math does not work for other motions, but Friday is still a bad day over-all.

« Previous Page