Chapter Eight

STYLE, ORGANIZATION, AND OTHER

MATTERS

"The partisan, when he is engaged in a dispute,

cares nothing about the rights of the question,
but is anxious only to convince his hearers of
his own assertions."
— Socrates

The interrogating attorney can bring many styles to the deposition

and many methods of organizing questioning of witnesses. The
attorney's techniques vary from witness to witness and from case to
case. The common thread, however, is the need for the attorney to find
ways to encourage the witness to talk and to tell his story completely, so
that no surprises pop up at trial.

8.1 STYLE
At a deposition, you should be assertive, bold, controlling1",
deferential, effective, fair, generous, hospitable, intelligent, just, kind,
lucky, magnanimous, nurturing, original, professional, questioning,
retentive, studious, thorough, unexcitable, versatile, wary, xenophobic,
yielding and*«ea$<sas. Caveat: Reading a long list of adjectives will not
prepare you to adopt the proper style for taking a deposition. From
deposition to deposition, witness to witness, case to case, and from time
to time at the same deposition, you may display many of the
characteristics from this list; however, you cannot predict in advance
the most profitable demeanor.
It is more helpful to set out the goals for the deposition and then to
examine the relationship between the attorney's style and the
likelihood of achieving these goals using the attorney's traditional
style. In general, a primary goal of a deposition is to find out everything
the witness knows that can harm or help your client at trial. Therefore,
during the open phase of questioning, which may well take up
two-thirds of the deposition, you should adopt a demeanor that
encourages the witness to talk. Your success will depend upon the
degree to which you can display interest in the witness's story, make

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 Chapter Seven
QUESTIONING TECHNIQUES

"It is not every question that deserves an answer.'

— Publilius Syrus

The types of questions asked in a deposition can take many different

forms. Speaking broadly, however, all of the questions being asked can
be broken down into two different types: information-gathering
questions and questions seeking admissions. Many attorneys err by
asking only one or the other type of question. Effective attorneys know
how and when to ask both types of questions.

7.1 INFORMATION-GATHERING QUESTIONING

la the information-lathering phase of a deposition, you are
attempting to teaWWmuch as possible about the witness's relevanjf
knowledge. In this phase you should focus on encouraging the witness
to talk—to lecture, to reminisce, to discuss, to evaluate—generally, to
speak as freely as possible, without the constant intrusion of narrow
questions that invite narrow answers'. Your focus should not be upon
displaying your own knowledge and how well you already understand
the facts of the case, but in learning new facts from the witness.
For ease of analysis, consider the questioning during a discovery
deposition as having three phases: the open phase, the clarification
phase, and the closing-off and pinning-down phase. You can often
weave back and forth in these three phases or approaches, so that you
examine one topic first with open questions, then ask clarifying
questions on that topic, and finally pin down the witness on details or
particularly helpful information with more controlling questions.
7,1.1 The Open Phase
In the open phase your questioning should be as wide open as the
direct examination questioning of a trusted and competent witness at
trial. Picture this aspect of the deposition like the wide mouth of a
, gathering up everything that might be useful to understanding
winning the case.
 Chapter Five
PREPARING TO TAKE THE DEPOSITION

"Speak without emphasizing your words.

Leave other people to discover what it is
that you have said; and as their minds are slow,
you can make your escape in time."
— Schopenhauer

5.1 YOUR FRAME OF MIND

In considering the attitude or approach to be used in taking the
^deposition, you should review your purpose in taking the deposition. If
/our primary purpose is to discover new information, then to the extent
that you are only reviewing things already known, confirming
preconceptions, or displaying your own knowledge of the facts, you are
not discovering new information and you may be wasting valuable
opportunities to gain knowledge of what your opponent will present at
trial or to gain evidence that you may use yourself. Consider the following
two approaches to questioning a witness in a product liability case:
Q. Mr. Mikionis, isn't it true that you should have used harder
wood for the header in the garage that held the torsion spring
assembly?
A. No.
Q. Don't you agree that the wood was just not hard enough, or
dense enough, to hold that spring assembly, given the short
screws that were used?
A. No.
Q. With the wallboard installed over the wood header, the screws
just didn't have enough penetration into the wood to safely hold
that spring assembly, did they?
A. I don't agree.
Q. Well, why don't you tell me why you don't agree?
A. The primary cause of the failure of this spring assembly system
was the use by the installer of an impact wrench to drive the
screws into the header, through the wallboard. That wrench

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 Chapter Eleven
OBNOXIOUS QR OBSTRUCTIONIST
DEFENDING COUNSEL

"[The enemy] must be hounded and

annihilated at every step and all
their measures frustrated."
— Joseph Stalin

Some attorneys believe it is their job in defending a deposition to

prevent the discovery of information at virtually any cost. At least three
reasons account for such behavior: first, the attorney is unprepared to
defend the deposition and is desperate to avoid the substance of the case
where he is ignorant; second, the attorney is inexperienced in
depositions and trial, and therefore lacks the confidence to allow the
facts to come out; and third, the attorney does not accept the premise of
the Federal Rules of Civil Procedure that pretrial discovery of the
opponent's information is favored1 and trial by ambush, obfuscation,
and surprise is disfavored.2
The obstructionist attorney is more likely to prey upon young or
apparently inexperienced counsel, whom he believes he can intimidate,
but he may try his tactics on any attorney in any deposition, from the
small tort case to the multi-district commercial contract and RICO
matter. A few, simple techniques will help you to control the
obstructionist attorney; if they do not control him, at least the
techniques will help you to complete the deposition despite the
interference.

1. The goal of the discovery rules is to promote "free and open" exchange of information
between the parties and to prevent surprise and delay. See, e.g., Davis v. Romney, 55 F.R.D.
337 (D. Pa. 1972); U.S. v. I.B.M., 68 F.R.D. 315 (D.N.Y. 1974); Wiener King, Inc. v. Wiener
King Corp., 615 F.2d 512 (3d Cir. 1980).
2. From time to time, it seems that a "fourth category0 attorney is discovered —the absolute
jerk—but, like the "new" dinosaur that turns out to be the scrambled bones of previously
known dinosaurs, the "jerk" usually turns out to be an energetic combination of two or all
three of the previously known categories.

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