The Top 10 Questions to Ask in a Deposition
In legal proceedings, depositions are essential for gathering evidence, challenging witness credibility, and uncovering hidden facts. The key to a successful deposition is asking questions that reveal damaging information, discredit the opposition, and strengthen your client's case.
Depositions are crucial for building a solid legal strategy, identifying inconsistencies, and gathering court testimony. They can lead to critical admissions, uncover hidden connections, and expose biases, significantly impacting the outcome of a case. Mastering these deposition questions to uncover damaging information enhances an attorney's effectiveness and increases the chances of a favorable outcome.
What Are the Top Questions to Ask in a Deposition?
Regarding depositions, the key is asking questions that elicit revealing answers, uncovering critical information, and gathering impeachment material. The following are some essential questions to include in your deposition questioning strategy.
1. Have you ever been arrested?
Importance and Relevance:
This question serves as a critical tool in assessing a witness's credibility. Knowing if a witness has a criminal history can provide insights into their character and reliability. It helps establish a background that might indicate a propensity for dishonesty or a lack of respect for the law.
Follow-Up Question:
To delve deeper into the witness's criminal history, follow up with, "Have you ever been convicted?" This question seeks to determine whether the arrest led to a conviction, which is generally more damaging to the witness's credibility.
Legal Considerations:
Admissibility. Opposing counsel might object to questions about arrests, arguing they are prejudicial and not necessarily indicative of dishonesty. However, convictions, mainly for felonies and crimes involving fraud, dishonesty, or moral turpitude, are generally admissible for impeachment under most rules of evidence.
Rule 609 (Federal Rules of Evidence). Rule 609 governs the admissibility of criminal convictions to attack a witness’s character for truthfulness. It allows felony convictions and any conviction involving dishonesty or false statements.
Strategic Use:
Credibility Attack. If the witness has been convicted of a crime involving dishonesty or fraud, this can significantly impact their credibility in the eyes of the court.
Behavior Pattern. Establishing a pattern of unlawful behavior can help paint a picture of the witness as unreliable or untrustworthy.
Bias and Motive. A criminal history might reveal potential biases or motives for the witness to lie, particularly if the witness has a relationship with the opposing party or a vested interest in the case's outcome.
2. Have you ever been deposed before?
Importance and Relevance:
This question helps gauge the witness's familiarity and experience with the deposition process. Witnesses who have been deposed before may be more prepared and coached, which can affect the spontaneity and reliability of their answers.
Follow-Up Questions:
Details of Prior Depositions. "Can you tell me about the circumstances of your prior depositions?" This can reveal the context, including the type of case and the nature of their testimony.
Related Court Experience. "Have you ever testified in court?" or "Have you ever been a plaintiff or a defendant in another lawsuit?" These questions help uncover the witness's broader legal experience, which can affect their demeanor and reliability.
Legal Considerations:
Consistency. Previous depositions and court testimonies provide a basis for comparing the witness's current statements. Any inconsistencies can be used to challenge their credibility.
Discovery of Impeachment Material. Prior depositions can be a treasure trove of potential impeachment material, especially if the witness has made contradictory statements in the past.
Strategic Use:
Experience Level. Understanding the witness's experience with legal proceedings helps tailor your questioning strategy. A seasoned witness might require different techniques compared to a novice.
Past Statements. Accessing and reviewing transcripts of prior depositions can reveal inconsistencies, contradictions, or admissions that are beneficial for your case.
Preparedness. A witness with extensive deposition or court experience is likely more prepared. This information can help you plan your questioning to test their preparedness and reveal coached responses.
Related Questions to Ask:
Can you describe the nature of the case in which you were previously deposed?
Were you a plaintiff, defendant, or a witness in that case?
Were there any significant outcomes or rulings from that case?
3. Have you ever seen the [plaintiff/defendant/employee] before the events related to this lawsuit?
Importance and Relevance:
This question is crucial for uncovering any prior relationship or interaction between the witness and a party involved in the case. Establishing such connections can reveal potential biases, conflicts of interest, or ulterior motives that could affect the witness’s testimony.
Follow-Up Questions:
Nature of Interaction. "Can you describe the circumstances under which you saw them?" This question helps clarify the context of their encounter and its relevance to the case.
Frequency and Timing. "How often and when did you see them?" Understanding the frequency and timing of their interactions can indicate the depth of their relationship.
Details of Relationship. "What was the nature of your relationship with them?" This can provide insights into whether the relationship was professional, personal, or incidental.
Legal Considerations:
Bias and Prejudice. Any prior relationship or interaction between the witness and a party involved in the case can suggest bias or prejudice. This is particularly relevant if the witness claims to be an independent or neutral observer.
Impeachment Material. Revealing undisclosed relationships can be powerful impeachment material, undermining the witness's credibility.
Practical Tips:
Detailed Background Check. Before the deposition, conduct a thorough background check on the witness to uncover any possible connections with the parties involved. This preparation allows for more targeted and effective questioning.
Document and Verify. Have any relevant documents or evidence ready to confront the witness if they deny prior interactions. This can include emails, meeting records, or third-party testimony.
Explore All Angles. Do not limit the questioning to direct interactions. Ask about indirect connections, such as mutual acquaintances or shared memberships in organizations, which can also reveal biases.
Related Questions to Ask:
Can you describe your relationship with the plaintiff/defendant/employee?
How did you come to know the plaintiff/defendant/employee?
Were there any notable incidents during your interactions with the plaintiff/defendant/employee?
By thoroughly exploring prior interactions or relationships between the witness and the parties involved, attorneys can uncover valuable information that may reveal biases, conflicts of interest, or ulterior motives. This can significantly impact the witness's credibility and the overall strength of the case.
4. Did you meet with the other side’s counsel before this deposition?
Importance and Relevance:
This question aims to uncover the extent of the witness's interactions with opposing counsel. It can reveal potential coaching and preparation strategies and the degree to which the opposing legal team might influence or shape the witness's testimony.
Follow-Up Questions:
Number of Meetings. "How often did you meet with the other side’s counsel?" This helps establish the frequency of interactions.
Location and Duration. "Where did these meetings occur, and how long did each last?" These details provide context and can indicate the level of preparation.
Content of Discussions. "What did you discuss during these meetings?" This can reveal whether the witness was coached on specific responses or key issues.
Legal Considerations:
Bias and Influence. Frequent or extensive meetings with opposing counsel can suggest that the witness's testimony might not be entirely independent.
Impeachment Material. Discovering that a witness has been heavily coached or influenced by opposing counsel can serve as strong impeachment material during a trial.
Practical Tips:
Detailed Inquiry. Do not stop at confirming the meetings. Delve into the specifics to understand the depth of the preparation and influence.
Consistency Check. Compare the witness’s deposition testimony with prior statements or reports to identify inconsistencies that might indicate coaching.
Cross-Examination. Use the information gathered to formulate targeted cross-examination questions highlighting discrepancies or coached responses.
Related Questions to Ask:
What specific topics did you discuss during your meetings with the opposing counsel?
Were any documents or evidence reviewed during these meetings?
Did anyone else attend these meetings?
5. Have you signed any written statements, made any recorded statements, or spoken to any reporters about the events related to this lawsuit?
Importance and Relevance:
This question aims to uncover the witness's additional accounts or statements about the case. These statements can be critical for impeachment, as they might contain inconsistencies or details not mentioned in the deposition.
Follow-Up Questions:
Specific Statements. "Can you provide details about your written or recorded statements?" This helps identify the content and context of the statements.
Media Interactions. "Which reporters or media outlets have you spoken to, and when did these interactions occur?" This reveals the extent of public disclosures and potential media influence.
Verification. "Can you provide copies or transcripts of these statements?" This ensures you have accurate records for comparison and impeachment.
Legal Considerations:
Consistency. Comparing the witness's deposition testimony with their prior statements can reveal inconsistencies undermining their credibility.
Public Statements. Statements made to reporters or in public forums are often less controlled than those made in a legal setting, providing fertile ground for impeachment material.
Practical Tips:
Pre-Deposition Research. Conduct thorough research to identify public statements or media interactions involving the witness. This includes searching news articles, social media posts, and press releases.
Document Requests. Request copies of all written and recorded statements during the discovery phase to ensure you have all relevant materials.
Detailed Examination. During the deposition, ask detailed questions about the circumstances and content of these statements to uncover any discrepancies or additional information.
Related Questions to Ask:
What prompted you to make these statements?
Did reporters approach you, or did you reach out to them?
Have you discussed these statements with anyone else?
6. Did you read any witness statements or deposition transcripts, listen to any recorded statements, look at any diagrams or photographs, or did somebody else read you any statements before the deposition?
Importance and Relevance:
This multi-part question is designed to uncover all the materials the witness reviewed in preparation for the deposition. Understanding what the witness has seen or heard can provide insights into their perspective and how well-prepared they are. It also helps identify potential coaching and the extent of their preparation.
Follow-Up Questions:
Specific Materials. "Can you specify which witness statements, depositions, or recorded statements you reviewed?" This helps identify the exact materials and their relevance to the case.
Visual Aids. "Which diagrams or photographs did you look at?" This can reveal how visual aids influence the witness's understanding or recollection of events.
Third-Party Involvement. "Who read these statements to you, and what was discussed?" This helps uncover any third-party influence or coaching that might have occurred.
Legal Considerations:
Preparation vs. Coaching. It is important to distinguish between reasonable preparation and improper coaching. Excessive or specific coaching might indicate that the witness’s testimony is not entirely theirs.
Rule of Completeness. Under the rules of evidence, if a witness refers to certain parts of a document or statement, opposing counsel may have the right to review the entire content to ensure it is not taken out of context.
Practical Tips:
Detailed Inquiry. Ask specific follow-up questions to get a clear picture of all the materials reviewed. This includes understanding who provided these materials and the context in which they were examined.
Cross-Reference. Compare the witness’s testimony with the materials they reviewed to identify any inconsistencies or areas where the witness might have been coached.
Document Requests. Request copies of all materials the witness reviewed as part of the discovery process to ensure you understand entirely their preparation.
Related Questions to Ask:
Who provided you with these materials?
When did you review these materials?
Were you given any instructions on how to interpret these materials?
7. Tell me everything you did to get ready for this deposition.
Importance and Relevance:
This open-ended question aims to uncover the full extent of the witness's preparation for the deposition. Understanding the preparation process can provide insights into potential weaknesses or areas of concern that the witness or counsel might perceive. It also helps identify any specific coaching or influence that may affect the witness’s testimony.
Follow-Up Questions:
Specific Activities. "What activities did you engage in to prepare for this deposition?" This can include reading documents, meeting with attorneys, or reviewing evidence.
Reviewed Documents. "Which documents did you review?" Knowing the exact documents helps understand the witness's information sources and potential biases.
People Consulted. "Who did you meet with to prepare?" This reveals if the witness received coaching or collaborated with others to shape their testimony.
Places Visited. "Did you visit any locations related to the case?" This can help understand if site visits or reconstructions influenced the witness’s perspective.
Legal Considerations:
Preparation vs. Coaching. There is a fine line between reasonable preparation and improper coaching. Excessive or detailed coaching can suggest that the witness’s testimony is not entirely theirs.
Attorney-Client Privilege. Be mindful of the attorney-client privilege. While general preparation activities can be inquired about, specific conversations with counsel may be protected.
Practical Tips:
Detailed Inquiry. Ask follow-up questions to understand the witness’s preparation process comprehensively. This includes identifying all reviewed materials, consulting individuals, and visiting locations.
Cross-Reference Information. Compare witness preparation activities with deposition testimony to identify coached or inconsistent responses.
Document Requests. Request copies of all reviewed documents during discovery to ensure you fully understand the witness’s preparation.
Related Questions to Ask:
Who provided you with the documents you reviewed?
Did you practice answering specific questions with your attorney?
Were any mock depositions conducted as part of your preparation?
8. Was Anyone Else Present When You Met with Your Lawyer?
Importance and Relevance:
This question determines whether any third parties were present during the witness’s meetings with their lawyer. If a third party was present, the attorney-client privilege might have been waived, opening up new avenues for questioning and potentially revealing additional information.
Follow-Up Questions:
Identity of Third Parties. "Who was present during these meetings?" Identifying the third parties helps understand their role and potential influence on the witness's testimony.
Nature of Involvement. "What was the purpose of their presence?" This helps determine whether the third party’s involvement was substantial enough to affect the privilege.
Extent of Participation. "Did the third party participate in the discussions?" Understanding the extent of their participation can help gauge their influence on the witness’s testimony.
Legal Considerations:
Waiver of Privilege. The presence of a third party during attorney-client meetings can result in a waiver of the privilege, making the content of those discussions discoverable.
Scope of Questioning. Once privilege is waived, attorneys can explore the discussions and information shared during those meetings, potentially uncovering new evidence.
Practical Tips:
Detailed Inquiry. Follow up with questions to identify the third parties and understand their role in the meetings. This includes their relationship to the case and the nature of their involvement.
Document Requests. Request any notes or records from the meetings where third parties were present to cross-reference with the witness’s testimony.
Cross-Examination. Use the information gathered to formulate targeted cross-examination questions highlighting the potential influence or bias the third party introduces.
Related Questions to Ask:
What was discussed during the meetings with your lawyer and the third party?
Did the third party provide any documents or information during these meetings?
How did the presence of the third party affect your preparation or testimony?
9. How Did You Find Your Attorney, Doctor, Chiropractor, Therapist, or Expert?
Importance and Relevance:
This question aims to uncover the circumstances under which the witness connected with their attorney, doctor, chiropractor, therapist, or expert. Understanding these connections can reveal potential biases, conflicts of interest, or prior legal issues that may impact the witness’s credibility or the case's integrity.
Follow-Up Questions:
Referral Source. "Were you referred to [the attorney/doctor/expert] by someone? If so, who?" This helps identify if there were any recommendations or referrals that might indicate bias.
Previous Connections. "Have you worked with [the attorney/doctor/expert] before?" Prior relationships can suggest a pattern of collaboration or mutual interests that might affect the witness’s objectivity.
Motivations. "What factors influenced your decision to choose [the attorney/doctor/expert]?" Understanding the motivations behind their choice can provide insights into potential biases or conflicts.
Legal Considerations:
Conflicts of Interest. Identifying conflicts of interest or biases can help challenge the witness's testimony.
Prior Legal Issues. Discovering prior legal issues or involvement with the key figures in the case can provide valuable impeachment material.
Practical Tips:
Detailed Inquiry. Ask follow-up questions to uncover the full context of how the witness connected with these key figures. This includes understanding any referrals, previous interactions, and motivations.
Document Requests. Request any records or communications related to the referrals or connections to cross-reference with the witness’s testimony.
Cross-Examination. Use the information gathered to formulate targeted cross-examination questions highlighting potential conflicts of interest.
Related Questions to Ask:
Did anyone suggest or recommend [the attorney/doctor/expert] to you?
Have you had any prior dealings or cases with [the attorney/doctor/expert]?
What criteria did you use to select [the attorney/doctor/expert]?
10. Do you have your driver’s license with you?
Importance and Relevance:
This question helps verify the witness’s identity and can provide additional personal information relevant to the case. This confirms that the witness is who they claim to be, which is crucial, especially in complex cases where identity might be questioned.
Follow-Up Actions:
Verify Identity. "May I see your driver’s license?" Verifying the witness's identity helps establish that the testimony comes from the correct individual.
Record Information. "Can you please state your full name and address as it appears on your driver’s license?" Recording this information into the record ensures accuracy and provides a formal reference.
Legal Considerations:
Accuracy of Testimony. Verifying the witness’s identity helps ensure that all the testimony is accurately attributed to the correct person.
Personal Information. It is important to handle personal information with care to maintain confidentiality and privacy while ensuring the necessary details are recorded for legal purposes.
Practical Tips:
Respect Privacy. Treat the witness’s personal information respectfully, ensuring it is only used to verify identity and record necessary details.
Cross-Examination. If discrepancies exist between the driver’s license information and the witness’s testimony, use this to formulate targeted cross-examination questions.
Detailed Inquiry. After verifying the identity, ask additional questions to clarify inconsistencies or gather more detailed information relevant to the case.
Related Questions to Ask:
Is the address on your driver’s license your current residence?
Have you lived at any other addresses in the past five years?
Is the information on your driver’s license up to date?
Elevate Your Litigation Strategy with NAEGELI Deposition & Trial
Since 1980, NAEGELI Deposition & Trial has been at the forefront of providing comprehensive court reporting and litigation support services. Our primary services include court reporting, remote depositions, and legal transcription, all delivered with unmatched accuracy and efficiency through advanced technology.
Our team expertly helps people thrive and survive a deposition. We use the latest courtroom technology to enhance the effectiveness and impact of your legal arguments. From file to trial, our professional staff strengthens your case through every stage. We offer customized trial presentation support and equipment setups to address the unique communication challenges of different litigation venues.
Our secure copying and scanning services, using ShareFile for confidentiality, ensure all client information is protected and easily accessible. With a commitment to exceptional client service and a concierge approach, we ensure your needs are always met with the utmost care and precision.
Contact our dedicated in-house support staff by calling (800) 528-3335, using our convenient chat feature, or by email. When you are ready to book our services, simply fill out our online scheduling form. Discover how NAEGELI’s court reporting, remote depositions, legal transcription, and advanced trial presentation services can enhance your courtroom strategy and provide a competitive edge.