CBA Record May-June 2023

YOUNG LAWYERS SECTION: BUILDING BRIDGES

before their deposition transcript is final ized, they will have the opportunity to review it and correct any errors. Start with Softball Questions Starting off with softball questions is another tactic to help get the witness com fortable. Typically, an attorney will first cover the witness’s background. While the exact questions depend on who the wit ness is, attorneys generally start by asking the witness’s name, address, age, date and place of birth, and all places lived. Attor neys then typically address the witness’s family information, employment, and educational background. These are great questions to start with, as they are easy to answer and may allow the witness to settle in and feel more comfortable with the process. Encourage Witnesses to Elaborate If you find the witness repeatedly respond ing, “I don’t know,” to your questions, a few additional strategies may help to elicit answers. One of the most widely used is the funnel approach, where the attor ney begins by asking broad questions, and each subsequent question gets nar rower. If the witness’s answers are limited, it is helpful to elicit a narrative. Asking open-ended questions, where the witness cannot just respond with a simple “yes” or “no,” will help draw out information. For example, compare the two questions: “After the vehicles made contact, did you get out of the car?” and “Tell me every thing that happened after the vehicles made contact.” The first question is likely to elicit a simple “yes.” The second ques tion prompts the witness to tell the story of what happened and will likely encour age them to share more details. Once the witness opens up and begins answering questions more fully, the lawyer can then break down helpful or important portions of the witness’s narrative answers into cleanly packaged, succinct admissions that are important to the client’s case. Another tactic is to use phrases such as “explain in your own words” or “tell me what happened after that” to encourage

the witness to elaborate. When the clock is ticking, it may feel counterintuitive to go back to square one and ask a broader question, but the narrative could bring to light useful details that you can probe further. Additionally, asking broad, open ended questions can be critical to securing key admissions that are necessary to suc cessfully prosecute or defend the case. Experienced and Expert Witnesses Deposing witnesses who have been previ ously deposed many times, or deposing an expert in a field with which you are unfa miliar, often requires a different approach than taking the deposition of a first-time witness. As a general matter, witnesses who have been deposed many times before usually know to listen carefully to the question asked and to think carefully about their answers. Some experienced witnesses may be difficult to depose because they answer questions narrowly and carefully, giving no more information than is necessary to answer. Other experienced witnesses may make the deposition difficult because they give strategically long, narrative answers that are either difficult to use at trial for admissions or impeachment material or waste your limited deposition time. Conversely, expert depositions may seem arduous because you must research and learn that expert’s field just to understand or be conversant in that field. Whichever type of experienced witness you encoun ter, you must be prepared to use the right strategy to get information and admis sions that are important to your case. Watch Your Demeanor For experienced non-expert witnesses who answer questions narrowly and are careful about providing information, the approach is largely the same as with inexperienced witnesses. As with inexpe rienced witnesses, make the experienced witness feel at ease by using a courteous, civil, and professional tone in your ques tioning. Particularly with experienced witnesses, getting angry with the witness or opposing counsel may cause the wit

ness to be even more obstinate, may make your relationship with opposing counsel difficult during the rest of the deposition, and may ultimately get you nowhere. However, especially with experienced witnesses, it is important to bear in mind the primary purposes of the deposition. With an inexperienced fact witness, the primary goal is often to learn informa tion. While it is important to try to obtain information from experienced witnesses, if they refuse to give it you, then prioritize locking in the witness’s testimony for trial and obtaining admissions. Confront Short Answers Strategically If you depose an experienced witness who continuously gives short and uninforma tive answers, and the funnel and softball questions approaches are not effective, treat the deposition as an opportunity to “box out” the witness and neutralize their usefulness at trial. As with inexperienced witnesses, begin by asking the witness easy, open-ended questions and neces sary follow-up questions to try to get the witness talking. Use documents, espe cially documents the witness authored or collaborated upon, where necessary to refresh the witness’s recollection. Stra tegically confront the witness with accu rate descriptions of testimony from other depositions that demonstrate that the wit ness should have knowledge about your question but be careful about drawing objections from counsel about misstating the record. If the witness still will not expound, then confirm that the witness has no knowledge, no opinions, or no testimony as to the subject matter of your question. This approach can often salvage a depo sition where you struggle with gather ing useful information from the witness because you achieve two important goals: (1) you get an important admission from the witness, and (2) you prevent or “box out” the witness from later providing a potentially harmful substantive answer to the contrary at trial. If suddenly the wit ness is very talkative at trial in response to your question and the answer is materi

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