The Deposition Tutorial: Questions, Answers, Tactics, Demonstrations by Anthony J. Bocchino David A. Sonenshein

Author:Anthony J. Bocchino, David A. Sonenshein [Anthony J. Bocchino, David A. Sonenshein]
Language: eng
Format: epub
Tags: Law, Evidence, Civil Procedure, Litigation
ISBN: 9781601567918
Google: 3aaeDwAAQBAJ
Amazon: B07THFR9VN
Barnesnoble: B07THFR9VN
Goodreads: 42454709
Publisher: Wolters Kluwer
Published: 2017-12-31T21:00:00+00:00

This example illustrates the basic questioning system for information gathering. The first level of questioning uses open-ended questions (e.g., “Tell us . . . ” “What 143

other . . . ”), where you encourage the witness to tell all she knows. Second, you ask those questions in a form that assumes there is information. Questions seeking expansion of the deponent’s previous answer ask “what else,” assuming there is something else—as opposed to “are there,” or “have you told us everything,” which suggests that there is no further information.13

Once the witness professes an end to the information flow, you will often have a “laundry list” of facts you believe are within the scope of the question.14 At this point, use more suggestive questions to test the accuracy of your laundry list. Once the witness responds affirmatively (or negatively) to the laundry list, return to the open, information-assuming question form of “what else”—it is not uncommon to get even more information. When that flow ends, ask a question that requires the witness to say that he has no further information.

In light of later potential use of the deposition for impeachment by omission, it is important that the witness, and not counsel, states that his testimony is complete on any given topic. If the deponent’s later testimony expands on the answers provided in the deposition, the omission becomes more valuable when the deponent—not deposing counsel—has stated on the record that he provided everything he knows that is responsive to the question being explored.

Many lawyers suggest one further question in this standard litany: “So have you told us every one of your duties as an assistant professor as they existed when you joined the Public Policy School in YR-6?” They are hoping for an affirmative response and another level of certainty to the completeness of the testimony on that topic. In the authors’ experience, however, this question’s challenging nature may meet with equivocation.15 An answer such as, “That’s the best of my recollection,” leaves open the possibility of later memories. Although there are ways to minimize such equivocations, which we will discuss later in chapter eight, we suggest that a clear and unencumbered answer from the deponent a better resolution to the exhaustion process.

The example above is just the first step in asking questions about Williams’s duties in her first year on the Public Policy School faculty—this topic has introduced a plethora of subtopics, including: 1) teaching—the courses she taught; what materials 144

and methods she used; whether she was evaluated, assisted, had any mentors; 2) academic service—the names of Public Policy School and university committees, activities therein, other people on the committee, role and function as a committee member; 3) research—the scholarly topics she chose to pursue, progress made in research and writing, any student assistants she used; and 4) other service—efforts made toward fundraising. Put another way, cover each of these duties as another topic in the deposition—explore the who, what, where, when, why, and how of each topic. In your preparation, you

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