USING HEADLINES IN WITNESS EXAMINATIONS

September 28, 2012

A Headline is a statement consisting of two parts: an introductory phrase and a topic. There are three main types of Headlines: (1) basic introductory phrases, (2) transitional introductory phrases, and (3) looping or coupling introductory phrases. It is important to remember that Headlines are statements, not questions. We use them to signpost the direction of our questions. It creates a feeling of flow and ease to the examination, providing guidance and clarity to the witness and the attorney.  This helps during depositions because time is always factor.  Succinct Headlines are effective. If you compose long or complex introductory phrases you create ineffective headlines that waste time. They defeat the primary purpose of a Headline – orienting the witness to the specific area or issue. Witnesses asked closed ended questions using ineffective Headlines use these long and complex Headlines to misconstrue the question and respond in a non-responsive fashion or give an outright destructive answer.  You cannot afford that during the deposition process.

You should use Headlines in all types of witness examinations: direct examination, cross examination, redirect examination, impeachment on cross, rehabilitation on redirect, laying foundation for and using exhibits, expert testimony, taking depositions, and even when speaking to the judge, jury, or arbitrator on jury selection, opening statements, and closing arguments.  Each of these questioning events have a corresponding approach that is routinely employed when deposing witnesses. When using Headlines you should always combine their use with the other basic questioning techniques as needed, depending upon the goal of your questions. These techniques include Wide-open Questions, Directive Open Questions, Probing or Testing Questions, Coupling Questions, and Closed or Leading Questions.

Remember – the Headline by itself does not produce substantive testimony from the witness. Think of Headlines as the signposts along the highway of your deposition. Each Headline is a marking stick that delineates within the deposition the specific area about which you are inquiring.  You want the depositions to be sufficiently clear that if you need to use during trial it will accomplish the purpose for which you have designed it.  Headlines will always signal where you are going, and keep you focused and on track, a rare skill for most lawyers taking a deposition. Because of this, Headlines are useful in conjunction with both open ended and close-ended questions.

Headlines help the witness understand the questions and the issue(s) you want to discuss. This creates a degree of comfort on the part of the witness, allowing them to focus on telling the truth as they remember it. For the witness, a deposition is usually not an everyday experience. They are nervous, worried, and sometimes frightened. Tell the witness that the two of you are going to have a conversation during the deposition. All they have to do is listen to your questions and then truthfully answer them. Headlines will allow you to make certain that the witness understands where you want to go and will then help them take you to that location. They assist the witness in testifying comfortably and persuasively, enhancing the witness’ credibility. They also allow you to keep the witness on the topic you wish to discuss and provide a ready means to bring them back to the issues at hand if they begin to stray or wander while being deposed.  Let’s move on in our next blog post and discuss the open ended questions that Headlines set up.