Depositions can become routine to seasoned litigation attorneys but even for those with decades under their belt, it is always good to have a list of go to deposition questions that will work in any situation. Your goal in a deposition should be to get as much information as possible about and from the witness. You can also question the witness’s credibility. If it goes far enough, you even have the possibility of impeaching a witness.
All of this is possible when you ask the right questions. They should be open-ended to encourage the witness to share as much information as possible. There will definitely be more case-specific questions you will want to ask, but these are a good start for basic questions that work in every type of case.
“What is your full name?” Basic question but necessary to get on the record and distinguish the witness from others with similar names.
“Is there any mental or physical reason why you would not be able to give accurate and truthful answers to my questions today?” This counters any question of impairment that may be raised in the future.
“Have you ever been arrested, charged with or convicted of a crime of any kind?” This speaks to the witness’s credibility to a jury. Felony convictions and any convictions for fraud, dishonesty or moral turpitude are generally admissible for impeachment.
“Have you ever been deposed before? If yes, have you ever testified in court? And, have you ever been a plaintiff or a defendant in another lawsuit?” Prior testimony and lawsuits can be a great source of information about the witness as well as potential grounds for impeachment.
“Have you ever seen the [plaintiff/defendant/employee/lawyer] before the circumstances related to this lawsuit?” The information uncovered by this question could reveal connections between a supposedly independent witness and the other party in the case.
“Did you meet with the other side’s counsel before this deposition? If yes, how many times, where, when and the duration of each meeting? What documents did you review prior to the deposition?” This information can help dismantle the claim of independence.
“What did the opposing party’s lawyer tell you before the deposition?” Ask this if the witness is not a party to the suit.
“Was anyone else was in the meeting when you met with your lawyer(s)?” Ask this if the witness is a party to the suit. If another person was present during the meeting, the witness may have waived their attorney-client privilege.
“Have you signed any written statements, posted any online statements online, made any recorded statements or spoken to any reporters about the events related to this lawsuit?” Before the depo, conduct a Google search for the witness so that you will know if he or she is lying.
“Did you read any witness statements or depositions, listen to any recorded statements, look at any diagrams or photographs, or did somebody else read you any statements before the deposition?” This gets to the same info as the question above but asks it in a different way to catch every possible angle.
“Tell me everything you did to get ready for this deposition including what documents you reviewed, places you visited and people you met with.” The witness’s answer can lead you down a new line of questioning and/or identify weak spots in their story.
“Which social networks do you use? What are your profile URLs?” For particular witnesses who are heavy social media users, delving into their personal online accounts can offer more information than any other source.
“How did you find your [attorney/doctor/chiropractor/therapist/expert]?” The answer to this question can uncover prior legal cases, litigation and previously existing health problems.
“Do you have your driver’s license with you? Please present it.” Write down or read the information or read it into the record.
These standard deposition questions are good to have locked and loaded and should be used at each and every deposition, but there are two other questions that should be added whenever you are looking for more information on a specific topic.
“Why?” This may sound counter to what most attorneys learned I law school, asking “why” is essential at the deposition stage of the litigation process. Since depositions are generally taken well before trial, you have plenty of time to counter, find out more and/or develop a new game plan for trial. Asking “why” can also reward you with some key information that can be used for your client’s benefit. The information gained may help your case, identify potential leading questions to use trial or even to get an insight into opposing counsel’s strategy for their case. if the explanation is not helpful then it’s likely that the opposing party will present the “why” during their case. This also provides an excellent opportunity to impeach the witness if he or she changes the story at trial. The exception to this rule is that you should not ask “why” in depositions that will be used in lieu of live testimony at trial.
“Is that all?” Asking this question will prevent witnesses from adding information to their answers later without facing the threat of impeachment. Ask this question anytime the witness gives an answer that you want to cap the explanation given, especially when the answer given is helpful to your case. The exception is in questions that witnesses gives an answer helpful to you but you think that asking “is that all” could potentially cause the witness to clarify his or her answer to your detriment.
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