As certified reporters, we spend a vast amount of time capturing the record in a wide range of cases. One detail that always makes us raise an eyebrow is the frequency with which witnesses are asked poorly worded questions, then proceed to answer without asking for clarification. It can be a dangerous trap.
Poorly asked questions can change the course of a deposition faster than a speeding bullet. For that reason, we thought it would be helpful to share some examples that we’ve heard over the years. We hope this information is helpful the next time you’re preparing your witness for a deposition.
Prior to the deposition, it’s important to review with your client their memory regarding all the facts of a case. Nerves play a huge part in a deposition for witnesses unfamiliar to the process and that gets in their way of remembering details. While you’re at it, make sure to prepare them for poorly designed questions from opposing counsel, including double negatives and compound questions. Preparing your client to deal with nonsensical and poorly constructed questions can help to maintain the integrity of their testimony.
The following is a list of potential scenarios. For each one, we offer some insight on how best to help your client to make a clear record.
Of course, you’d object to a compound question because they incorporate multiple questions (and answers) into one. They are extremely deceptive and can be dangerous to your case because a “yes” or “no” answer on the part of your client can be understood to be an affirmative response to each part of the question. For example, “Did you drive impaired on Friday night and Saturday afternoon?” The first question is, “Did you drive impaired?” The second is, “was it on Friday night and Saturday afternoon?” In these situations, it’s important that your witness be confident enough to separate out the questions and answer accordingly. Coach them to listen to the entire question carefully before answering.
Another style of confusing questioning involves summarizing prior testimony followed by a yes-or-no question at the end, or an “is that correct” or “is that right”. In these situations, clients often focus on the final yes-or-no part without realizing that their answer will be reflected in the record as a complete affirmation to the entire scenario that preceded the yes-or-no question. For example: You’re saying that you didn’t run the red light, or did I misunderstand that answer? The inclination is to answer, “Yes,” (as in, Yes, I’m saying I didn’t run the red light), when, in reality, the correct answer is, No, (as in, No, you didn’t misunderstand). Remind your client to carefully listen when questions are asked and to watch out for summary questions.
Questions in Absolute Terms
Remember the cliché “never say never”? There’s a reason to remind your client to avoid absolute terms such as always, never, all, every, only, must – namely because these words indicate that there is no exception. They are either 100% correct or 100% wrong. Whenever opposing counsel uses phrases like, “Did you always” or “Haven’t you ever,” they’re trying to lock your client into absolute terms. While there’s nothing wrong with being absolutely sure of an answer, it’s important that your client understand exactly what they are agreeing to when they answer these types of questions. “Do you always shop at Safeway?” A “Yes” answer means the deponent has never shopped anywhere else.
“Would You Agree…”
Questions are often wrapped up in a nice “would you agree” or “wouldn’t you agree” package. Warn your client to watch out for this trap. Another phrase to watch out for is, “Would it be fair to say…” Like summary questions listed above, it’s important for your client to carefully listen to each aspect of the question and ask for clarification (or a breakdown of the details) before answering. “You were the one who shot John Doe, wouldn’t you agree?” The answer could be, “Yes” (as in, Yes, I would agree), but your client is possibly going to answer, “No” (as in, No, I didn’t shoot John Doe).
Open-ended, narrative questions can also be dangerous. For example, “Please state all the facts of the case.” “Please name everyone you talked to that day.” Most clients are not capable of rattling off a comprehensive list in a deposition for “all” or “everyone” in a deposition. There are too many details to remember everything on demand. In these situations, it’s possible that you might want your witness to use a qualifying statement such as, “I’ll answer to the best of my ability to remember everyone I spoke to that day.” This will allow you to address the topic during cross, or the deponent can address it later during the signature process when they review the deposition before the record is sealed.
Deponents are generally anxious to just get the process over and answering quickly is a way they see of making that happen. Answering quickly, though, can lead to misunderstandings and miscommunications which confuse the record. Suggest a pause after each question so they formulate their answer as they pause. Let the witness know that if a question is truly confusing to them, they can always ask the reporter to read it back, or you can ask for them. There are ways to assist in making a clean record without crossing the line of coaching.
I hope these examples help you see a few ways that poorly worded questions can negatively impact your client’s record. Discuss these pitfalls with your client prior to deposition so that they’re ready and equipped to divert these traps. A little time on the front end may safeguard your client’s case during (and after) deposition.
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