September 21, 2012

An open or non-leading question showcases the witness and not the advocate.  It invites a complete answer from the witness on a topic chosen by the advocate.  You can always tell an open question and corresponding answer because the witness will talk for a longer period of time than the advocate. There are a variety of open questions normally used, but the type of open question chosen depends upon the demeanor and knowledge of the witness, as well as the specificity of the issue the questioner wishes to discuss.  Examples include: (1) wide open questions, (2) directive open questions, (3) probing or testing questions, and (4) coupling questions.

You use Wide Open Questions during depositions to get the witness talking.  They identify a particular topic the advocate wants the witness to address. Most effective Wide Open Questions immediately follow a Headline that has oriented the witness to the topic you want to discuss. Wide Open Questions normally direct the witness to a specific time, place, person, or event identified in an earlier question or Headline.

After identifying the area you want to discuss with Wide Open Questions, you use Directive Open Questions to narrowly focus the witness. Directive Open Questions are normally coupled with a Headline so that the witness understands the scope and direction of the advocate’s inquiry. Directive Open Questions, when coupled with a Headline, are an effective and capable means of orienting your witness to a very specific issue you wish to discuss, while also ensuring that the witness is fairly bound by the answer. Directive Open Questions normally appear after Wide Open Questions. They are often followed by Open Questions that allow the witness to further explain the specific issue you have identified through your Directive Open Questions.  They are usually followed up with summation questions that get the witness to agree that the topic has been exhausted and that their answers are true, fair and complete.

Open questions are designed to get out relevant information about a specific time, place, person, or event that the advocate wishes to discuss in greater detail by allowing the witness to answer with more details. The structure of Open Questions allows for the possibility of maximum explanation by the witness. Open Questions free the witness to answer with greater specificity by throwing open the door for them to answer completely based upon their own knowledge and experience.

After you have gotten most, if not all, of the relevant facts from a witness you may need to employ a more specific type of Open Question to elicit those last few bits of relevant information. These types of Open Questions are usually referred to as Probing or Testing Questions. While they are narrowly construed, they are still Open Questions. They lead the witness to the specific fact you wish to discuss, but do not suggest the appropriate answer to the witness. These are focused questions that normally begin with a verb or have other elements that either clarify or explain an issue or point in the case. You are leading the witness to a particular issue when you use these types of questions, but you still are not suggesting answers. The test for an appropriate Probing or Testing Question is whether or not it is focused on a specific item about which further inquiry is necessary in order to explain a relevant point for your case.

One of the goals of a deposition is to pin the witness down, sloppy questioning techniques often prevent that from happening.  Understanding the true basics of open ended questioning will go a long ways towards avoiding the questions that leave a witness with a place to run once opposing counsel gets the opportunity to try and get the witness out of the box the answer to your question has put them in.  In our next post we will talk about using close ended questions to control and pin the witness.