When we think of attorneys and questions, images of courtroom witness examinations and jailhouse interviews come to mind. But for most attorneys, questions are more often asked during pre-litigation investigation, discovery, and settlement negotiations — all situations in which the attorney needs to gather information. To get the answers you want and need, you have to ask the right questions.
The most efficient way to gather information from someone is to ask open-ended questions, i.e., questions that can be answered in a potentially infinite number of ways, thereby giving the speaker a broad canvas to tell you what is most important to him or her. Examples of such questions include: Why? What would you like to see happen? What concerns you most? Where would you like to begin?
By contrast, in asking a closed-ended question you narrow the playing field through assumptions about what is likely to be important or relevant to the speaker. Sometimes these assumptions will be correct; nonetheless, unless you test the assumptions, you may never realize that you are getting an incomplete picture.
Here are some other helpful questioning techniques to use when gathering information during investigation, negotiation, and discovery:
- Questions That Clarify, e.g., tell me more about…, What do you mean by…? Can you put that in other words? Can you be more specific? What specifically makes you say that…?
- Questions That Encourage Further Response, e.g., Can you tell me more? Go on.… Can you elaborate? What you said was important/interesting/helpful—can you say more about that?
- Questions That Diagnose the Situation, e.g., Why do you believe that? What evidence supports your conclusion? Can you give me a specific example of why…? What are the implications of…? Where do you want to be in 5 years and how does what you’ve proposed further that goal?
- Questions That Elicit Underlying Interests, e.g., Why is _____ important to you? What is significant to you about _____? What interests of yours does _____ meet? What if you don’t get _____? What does _____ mean to you? What will getting/having _____ do for you? In an ideal world, what would you want and why?
On effective questioning during settlement negotiations, go to CEB’s California Civil Procedure Before Trial, chap 46. On questioning techniques during depositions, check out CEB’s book California Civil Discovery Practice, chap 6 and program Preparing for, Taking & Defending Depositions, available On Demand.
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