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Taking exceptional depositions: asking routine questions gets you routine answers. Exceptional depositions result from different approaches, from boxing in the witness to restating testimony. Here's how you can stay in charge.

Article Excerpt
Depositions too often are nothing more than repetitive, seemingly endless strings of who, what, where, why, when, and how questions. At the end, you know (maybe) most of what a witness knows or recalls.

Big deal. No defense attorney or insurance carrier will lose sleep because you spent six hours asking a corporate representative those routine questions. The answers they elicit are unlikely to change a case's value or increase the chance your client will prevail in court either by motion or verdict. (1)

Exceptional depositions do not result from this kind of approach, but instead from a focused effort to elicit testimony that accomplishes specific goals. Such a deposition begins with a written analysis of your and your opponent's case-critical points. The next step is determining which case-critical points you can establish through a witness that will either support your case or undermine your opponent's.

If your planning for the deposition includes specific goals for a witness that are directly related to case-critical points, you are on your way to taking an exceptional deposition. You aren't going to get there with who, what, where, why, when, and how questions, though. The techniques you need to know if you want to take great depositions include exhausting the witness, restating and summarizing, boxing in, using learned treatises and scientific studies, and using cross-examination skills with difficult and evasive deponents.

Each of these techniques has a special purpose. When they are used and sequenced appropriately within a deposition, the outcome can be exceptional.

Exhausting a witness means finding out everything he or she knows. It is the one goal that all examining attorneys strive to accomplish in their depositions, and it is what underlies the mistaken reliance on questions like who, what, when, and where.

Unfortunately, it is freakishly uncommon to find a transcript where witness exhaustion has been accomplished. Instead, when preparing for trial and reviewing transcripts, lawyers often will discover holes where the witness's testimony on one or more critical points was not exhausted or a topic was not explored in enough detail to predict what will be said at trial.

This generally occurs for four reasons: overuse of closed-ended questions, failure to make the witness state that he or she has nothing further to add, questioner fatigue, and--particularly in the case of experts--letting the witness's answer drive you to ask about a new topic before exhaustion has been accomplished on the current topic.

Attorneys sometimes make the job harder than it needs to be because they do not know the simple, basic techniques that can put them in charge. Here are some techniques that will allow you to accomplish your goals and maintain control.

Exhausting the witness

A witness who is asked a closed-ended question can give a limited answer that does not exhaust all the facts he or she knows or recollects. For example, is "What cars did you see in the intersection at the time of the wreck?" a question that has the potential to exhaust what the witness saw or knows? No. It allows the witness to limit the answer by the elements of "cars," "intersection," and "at the time of the wreck."

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The answer will not include vehicles other than cars, areas approaching the intersection, and actions before the impact. An open-ended, exhaustive question would be, "Tell me what you recall." You might then follow up with "Tell me more."

You can then ask simple follow-up questions like:

* What else?

* Did anything else happen?

* Was anything else said?

* Did you observe anything else?

* Do you remember anything else?

* Are you sure that's all you remember/saw/heard?

* Have you told me everything you remember about the accident?

* Is there anything else you think I need to know?

* Is there anything else you know or remember that you think would be important to know if you were asking the questions?

* Is that everything?

* Have you told me everything?

Do not allow the witness's answer to prompt you to move to another topic until you have exhausted...

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