If you daydream about depositions, it’s probably about that crucial moment where the witness makes that fatal admission that undermines his whole case: “So you ADMIT that this is your signature on the key document?” “YES!” (witness dissolves into sobbing, thoroughly cowed by your impressive lawyering).
But those moments are rare. Real litigation rarely resembles our wildest dreams; it actually takes significant skill to craft a line of questioning that gets you to that fateful admission. How do you do it?
This is where cross-examination and closed-ended, or leading, questions come in. Some lawyers love them, some lawyers hate them. Leading questions can be used to obtain party or expert admissions. They can be used to test your theories of the case. They are also a great way to test lines of questioning for trial. Maybe the witness will not say what you want, but it’s better to know now during discovery than to learn this at trial!
Craft a Case Theory
The process of getting great admissions or testing your theories begins during preparation, or what I call, “Dep Prep” The first step is to craft a case theory. Before you can ask questions designed to elicit a statement that is key to your case, you have to understand your theory of the case. You must also take the time to evaluate, to the extent you can, your opponent’s case theories. What theories does he or she appear to be making in correspondence, in oral argument, or in briefing?
Next, identify what key facts are necessary for your theory and the opposing party’s theories. Finally, identify what statements the particular witness might make that are relevant to both theories.
Ask Leading Questions to Obtain Admissions
As a practical matter, you will arrive at these admissions or statements through a series of leading questions, which elicit a “yes” or “no” answer, and do not call for explanation. The goal of leading questions is to assert control over the witness and force the witness to give the desired answer. It takes time and practice to learn to deftly wield the leading question. Questions should be short so the party statements do not get obscured. In its Deposition Skills class and texts, the National Institute for Trial Advocacy recommends the “one-fact” leading question.
By asking a series of questions that ask only about one fact, the questions build upon each other to the desired answer. By only asking about one fact, it is harder for the witness to hedge or equivocate. If you encounter a roadblock, revert to open-ended questioning until you can resume your closed-ended questions.
Leading Question Techniques: Looping and Boxing In
To get the great statement or admission you want, there are a couple of different techniques you can use. The first is called “looping.” Using looping, you incorporate a witness’s favorable answer into your next question. The witness will feel compelled to give the desired answer or look foolish. Another effective technique — boxing the witness in — is moving from facts the witness must admit to facts you would like the witness to admit. You will likely need to plan this line of questioning in advance to carefully move the witness to where you want to go. Think of ways the witness could potentially escape from the admission you are trying to commit him to, and close off that option by asking a question that forces him to commit. You want the witness to have to choose between being truthful and looking foolish by contradicting a prior answer.
More Tips for Leading Questions
A deposition is also the time to test your theory to the end, to see how far you can get the witness to go, and to ask “one question too many.” While we are frequently cautioned not to “ask one question too many,” or to ask “a question you don’t know the answer to,” the time for these questions is during the deposition. If the witness has an explanation for her answer, you want to hear that explanation before trial. Plus, the explanation may come out during the opposing attorney’s questioning of the witness, or direct examination at trial.
Also remember that it generally does not matter at what point in the deposition the admissions are sought. If a witness is evasive and doesn’t want to answer, ask the question at another point during the deposition, but just as effectively use the testimony down the road. Remember to conceal your objective as long as possible, lest the witness figure out what party admission you are trying to get, and foil your attempts.
Using leading questions takes practice. Crafting intelligent and effective lines of cross-examination takes practice, too. But this is an area where preparation is key. What you lack in experience you can make up for in preparation – by taking the time to learn about these techniques and to know your own case. You just might get that Hollywood deposition moment.