You prepare deposition or investigation questions in advance, but it’s the follow-up questions—often crafted on the fly—that may be the most important. Indeed, Michael Cohen’s lawyer Lanny Davis said that members of the Senate Intelligence Committee failed to ask the right “follow-up questions” when Cohen appeared before them last year and therefore failed to elicit crucial answers. Don’t make that mistake!
Throughout a deposition, you should be listening carefully to the deponent’s answers and asking follow-up questions. Follow-up questions are basically who, what, where, why, when, and how, and end with “Is there anything else?”
There are two categories of follow-up questions:
- Moving in a new direction. The first type of follow-up question pursues other areas of inquiry elicited by the answer to the preceding question. This is where careful listening is so crucial—the deponent could take you somewhere that you didn’t expect.
- Closing the door. The second type of follow-up question can be described as “closing the door” questions, such as, “Have you now told me the names of every person that you believe witnessed the accident?” These types of questions are designed to foreclose future testimony and commit the party to a particular version of the facts, e.g., “Are you aware of anything that could refresh your memory?” and “Do other documents exist?”
Follow-up questions are often very specific. For example, if a deponent gives an answer like: “I was told that the car had been fixed before I drove it.” This is the time to follow up with specific questions, such as:
Who told you?
When were you told?
How were you told (e.g., in person, by telephone, by letter)?
Are there any documents that reflect that conversation (e.g., a repair order, memorandum, e-mail message)?
Who else was present when these statements were made?
Then ask what the witness said in response, and whether there’s any document that might refresh the witness’s recollection.
In addition to eliciting additional facts, follow-up questions may either establish the truth of the witness’s testimony or serve as impeachment evidence.
For guidance on taking and defending depositions, turn to CEB’s California Civil Discovery Practice, chap 6.
Other CEBblog™ posts you may find useful:
- 3 Questions to Ask Every Expert Witness at Deposition
- Develop a Routine: Stock Questions to Ask in Every Deposition
- Questioning at Trial Versus at Depositions
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