Every attorney should develop a list of stock questions and ask them of most deposition witnesses. Here are some sample routine questions to consider adding to your list:
If you don’t know, who does?
Describe the search made for documents designated in the subpoena duces tecum? (Mark the subpoena duces tecum as an early exhibit and review it in detail.) Did you personally conduct a search for documents or electronically-stored information or direct others to carry it out? What systems, rooms, cabinets, and files were searched? What standards were used for the search? What other files or locations (including “dead storage” space or stored back-up files) might contain responsive documents, including electronically-stored information?
If you don’t know the answer, what documents would you consult to find an answer?
[For non-party witnesses.] Have you discussed this case with opposing counsel? Exactly what did you talk about? How many meetings did you have? How long did they last? What documents were reviewed or shown to you? Have you discussed the case with anyone else? (Ask the same questions after recesses or lunch, to find out if opposing counsel has been coaching the third party witness or has revealed case theories to the witness.)
What have you reviewed to prepare for your deposition? Was your memory of past events helped by the review?
And always ask the “big question.” Don’t miss the chance to develop invaluable testimony because of an assumption that the witness will evade or deceive on some key point. Big questions—which do grave damage to the witness or to a party with whom the witness is identified—sometimes are answered with full candor. A witness may bend testimony, backpedal, or evade, but will usually not perjure him or herself if confronted with a direct question.
Get more practical advice on deposition questioning in CEB’s newly-updated Effective Direct and Cross-Examination, chap 9. For everything you need to know about taking and defending oral depositions, turn to CEB’s California Civil Discovery Practice, chap 6.
Other CEBblog™ posts on taking depositions:
- 4 Preliminary Questions for Every Deposition You Take
- Don’t Be Trapped by Your Deposition Outline
- Questioning at Trial Versus at Depositions
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