One of the most difficult tasks for a newer attorney is organizing your deposition questions. (Well, that and wording the question right, managing the witness, managing opposing counsel, not saying “OK” after every answer, figuring out how to think, take notes, and listen all at once.) In the deposition skills class I took through the National Institute for Trial Advocacy, I learned about the “funnel technique.” This questioning method can help you organize your questioning, while also ensuring you gather all relevant information.
Start at the Top
You begin at the top of the funnel, asking broad, open-ended questions. Often your questions in this stage will start with “who,” “what,” “where,” “describe,” “explain,” or “tell me.”
Get the List
The next step in the process is “getting the list.” At this stage, you want to find out the scope and breadth of the witness’s knowledge about a particular topic. For example, you may be asking about a witness’s job duties. Before you start to question specifically about each duty, get the list. And for Pete’s sake, don’t forget to write down the list! This gives you a road map for the rest of your questioning on the topic. If you are crunched for time, you can focus on the most important areas first. Before moving on to the next step, make sure your list is complete. Ask the witness whether there is anything else that should be added to the list.
Next, you will continue to travel down the questioning funnel by drilling down on each particular “funnel” or topic on the witness’s list. In this stage, ask more questions to flesh out the details. “You told me one of your duties is coordinating with vendors. How often do you do that?” “Which vendors?” Etc. The questions will generally still be open-ended, but you are becoming more focused. As you get to the bottom of the funnel, your questions will become more narrow and closed-ended. “Did you coordinate with vendor X?”
Close the Funnel
Finally, you will close off the funnel, essentially locking the witness into their testimony. You do not want the witness to surprise you at trial by adding an additional piece of information you did not gather at the deposition. You could close off by asking something like, “Is there anything else…?” “Is that all you recall about…?” or “Have you told me everything you did….?”
Once you have closed off the funnel, you can travel back up to your list (handily written down) and begin the process again on the next important item. This process can really help organize your questioning in a way where you get the testimony you need, but don’t forget an important area of questioning.
Obviously, questioning at a deposition isn’t always so orderly. Sometimes a witness is squirrely or argumentative, or sometimes the witness gives you such a juicy nugget that it is tempting to toss your funnel method out the window and follow them down the rabbit hole. You will have to use your instincts to determine whether the witness is ripe to talk on that subject, or whether you should jot down the comment and return to it at a later point in the deposition. Your judgment will only be honed with practice, but the funnel technique at least gives you a solid framework to start with.