October 5, 2012

The basic and universal skill you must master to properly depose a witness is the ability to ask cogent, relevant, and applicable questions.  At the same time you have to be able to listen to the answers given and form additional questions based upon those answers.  Before we can begin to discuss how to depose, we must first master that skill together.

In order to ask proper questions you must combine your understanding of the case with specific questioning techniques. Your understanding of the case comes from proper case analysis, and informal discovery.  You should take that information and then identify potential areas of inquiry, the actual schema for conducting the deposition, and the identification of areas of potential impeachment at trial.

Your goals during depositions should be to include pinning the witness down and verifying the evidence that supports you case, identifying the evidence that will potentially hurt your case, and discovering the strengths and weaknesses of the witness.   Before we can discuss such issues of strategy you must first master the tools that will allow you to unlock witnesses during depositions.  We will begin with the most basic fundamental building block of the deposition – asking questions.

As advocates the words that we use, the form of questioning that we choose, and our physical presence are the music of our profession. Before you can begin to recognize and make that music, you must first master the use of language with witnesses. The most fundamental skill you must first master before you can conduct superior depositions is the ability to ask questions that help get out information and empower witnesses to understand what we are asking and to answer it completely. The most basic and universal skill that an advocate must master is the ability to ask cogent, relevant, and applicable questions while listening to the answers given by the witness.

A thorough knowledge and understanding of Basic Questioning Techniques is an absolutely essential skill for any competent advocate attempting to conduct a deposition.  All relevant information received by the finder-of-fact begins with a question posed by an advocate.  The substantive evidence identified during depositions and later introduced at trial has its genus in the art of asking questions. You must master all of the basic questioning techniques available in order to maximize your effectiveness during depositions. Questioning is the primary means of discovering information from the witness, and the ability to properly formulate and ask questions is a fundamental skill that all advocates must continually develop and practice.

There are three basic questioning techniques for examining a witness: (1) Headlines, (2) Open or Non-Leading Questions and (3) Closed or Leading Questions.  You must not only know when you are allowed to use each type of question, you must also know why one type of question is superior to another in a given situation. Once you learn these Basic Questioning Techniques you will be able to use them to effectively achieve your purpose or goal in any situation that might arise.  We are discussing them here in the context of depositions, but they are just as applicable during witness interviews, direct examination and cross-examination. These Basic Witness Questioning Techniques should be a pervasive element in your planning and execution whenever you are questioning a witness.  In subsequent posts we will discuss each.