21 Questions to Consider When Starting a Deposition

Originally featured in the September 2007 issue of NITA Notes, faculty member James L. McCrystal Jr. of Brzytwa Quick & McCrystal, LLC in Cleveland, Ohio, shares some of his best practices when it comes to initial questions.

Best Practices: Initial Questions

How many depositions have you seen that start with questions like, “Will you let me know if you are confused?” “Do you understand that you have to answer the questions out loud?” All too often, the witness responds with a “yes” or at times the inarticulate nod of the head or an “uh ha” response.

Try this approach; ask questions such as, “What will you do if you don’t understand a question?” and, “What will you do if you know we have a document that will help you better answer a question?” These questions get the witness to make a commitment to you.

They aren’t getting their answers from me. I’m not setting the rules, they are. They can’t simply agree with my statements. I think I get a stronger commitment from the witness when he or she is writing the rules. In my experience, the well schooled and crafty witnesses and the poorly educated and barely articulate witnesses both set terms I can readily accept.

This process works because the basic rules for deposition conduct are common sense. This is why asking the witness to set the terms should be relatively risk free.

Sure there is a risk in this style. You are letting the witness take charge, but where can they go that would hurt you? After all, if they propose a rule for the deposition you don’t want to accept, you can still impose your own rule.

When the witness sets out the terms, impeachment is easier because the jury will see that the witness has broken his or her own rule. Your impeachment begins, “Do you remember being asked ‘what will you do if you don’t understand my question?’ and didn’t you tell me ‘I’ll tell you I didn’t understand it.’ And then didn’t you say, and I quote from page seven of the transcript, ‘If I am confused, I’ll let you know.’” Jurors are more likely to find it fair to impeach a witness who set the terms by which they will be judged. If I dictate the terms, jurors are more likely to give the witness the benefit of the doubt.

Here are some simple questions to consider using when starting a deposition:

1. What do you think this deposition is about?

2. Why do you think there is a court reporter here to record everything you and I and your lawyer say?

3. What will you do if you don't hear a question?

4. What will you do if you don’t understand a question or are confused by it?

5. Will you do your best to answer loud enough for everyone in the room to hear?

6. Is there anything on your mind that might make it difficult to concentrate on what you are being asked?

7. Are you on any drugs or medications or alcohol that you think will interfere with your ability to answer my questions?

8. Is there anything else you are aware of that would keep you from giving full, complete, and accurate answers to the questions here today?

9. What will you do if I cut you off or interrupt your answer?

10. What will you do if you need to look at a document to answer a question?

11. What will you do if you realize an answer that you’ve given was wrong or inaccurate? Will you let us know right away?

12. Here is a copy of the duces tecum for your deposition. It’s the request we made for documents and records related to your testimony. We will have it marked as an exhibit. Have you seen this before? What did you do to respond to it?

13. Can you think of any reason why your testimony at trial would be different than today?

14. What have you done to help yourself remember what you are going to be testifying about today?

15. Do you understand everything I've gone over so far?

16. Do you have any questions before we get started?

17. Finally, how long would you like to go before we take our first break? Would an hour and a half be okay. with you?

18. If you need to take a break sooner than that will you let me know?

19. If you need something to drink or if you need to stretch while you are testifying, will you let us know?

20. When the deposition is over, it may be typed up by the reporter into a transcript. If so, and you review it, will you let us know of any changes or corrections you would like to make to your testimony, along with your reasons for them?

21. Do you have any questions about what I have just covered?

Not all these questions are necessary and there may be others that need to be added to the list.

The goal at the outset of the deposition should be to set clear ground rules with the witness. When the terms are clear and come from the witness, the more likely they will follow them. When that happens, you should expect to have a more effective deposition. Try this technique in your next deposition; I think you will find it works.