Practice Tip: The Do's and Don'ts of Depositions

A “tag question” is one that is followed by a tag such as, “right?” or “correct?” Although they can be answered with a “yes” or “no,” these questions often get the questioner into trouble.

Q: “You thought that the medication could cause inflammatory bowel disease, right?”

A: “No.”

Now what does that answer mean? That the witness did not think the medication causes inflammatory bowel disease? Or does the witness think the opposite? If the court even permitted the question, the jury might find it confusing. The question should be:

Q: “Did you believe the medication could cause inflammatory bowel disease?”

A good trial lawyer will never ask the witness a question with the tag, “right?” The attorney might get a laugh out of a jury, as I personally have seen, if the witness says “Wrong!” The form of every question should elicit a “yes” or “no” answer.

Close-Ended or Limiting Questions

“Are you a gastroenterologist?” is a close-ended question because it limits the witness to a narrow choice. A better question would be “What, if any, are your specialties?” That question may also save you a lot of questions in between, e.g., “Are you a general practitioner?” “Are you a neurologist?” Open ' or non-limiting ' questions will also compel a witness to testify to a list of items, some of which you may have otherwise overlooked if you asked limiting questions.

Negative Questions

Never ask questions that contain a negative word in the phrasing.

Q: “You didn't tell the patient the risks, did you?”

Suppose the witness says “yes.” Does that mean the witness did not tell the patient the risks, or that he did? The proper question is:

Q: “Did you inform the patient of any risks?” or, “What risks, if any, did you tell the patient about?”

Here's another one:

Q: “You don't have a PDR in your office, do you?”

A: “Yes.”

No information was gleaned from that question and answer. Such questions are almost always objectionable. because the inquirer does not know what the witness is responding to.

The proper form would have been, “Do you have a PDR in your office?” Another fruitless line of questioning is, “Do you know ' ?” Or “Do you recall ' ?” These are almost always objectionable because the inquirer does know what the witness is responding to.

Q: “Did you know that Dr. Smith weighed the patient?”

If the witness says “No,” is he saying he did not know Dr. Smith weighed the patient or that Dr. Smith did not weigh the patient?

Q: “Do you recall that Mr. Jones told you he wanted to take that medication?”

A: “No.”

Is the witness saying he does not recall or that Mr. Jones did not want to take the medication?

The minute an attorney hears the words “Do you know,” or “Do you recall,” s/he should be ready to object to the form.

'Wh' Questions

The questioner should use “who,” “whom,” “whose,” “what” and “why” in addition to “how.” You can never go wrong with a question that incorporates these interrogative pronouns. “Why” is one of the best words to use at a deposition. Most lawyers hardly ever ask a witness “why” s/he did something.

Q: “Why did you write that e-mail?”

Q: “Why did you say in that e-mail that ' ?”

Q: “Why did your automobile hit the plaintiff?”

“Why” questions always provide the most probing avenue of inquiry. A “state-of-mind” objection, i.e., that the question is asking the witness's “state of mind” is an improper objection even at trial. A witness can be asked about his own state of mind and why he did or did not do something; the question is only objectionable if it asks the witness why someone else did or thought something.

Using 'and' in a Question

This is almost always an objectionable form of questioning. “Are you married and living in Brooklyn?” If the witness says “No,” then you will have to ask, “Are you married?” and then, “Are you living in Brooklyn?” So why not just ask that in the first place. Avoid using “and.”

Questions with 'or'

These, too, are almost always objectionable. “Do you live in Brooklyn or the Bronx?” Just ask “Where do you live?”

Conclusion

At trial, a smooth examination between witness and lawyer will clarify the issues that the lawyer wants the jury to understand; however, if many objections are sustained, the jurors will lose their trend of thought. Therefore, at depositions try to envision yourself in front of a jury when you are posing questions (and bring along this article).

Larry Goldhirsch, a member of this newsletter's Board of Editors, is Trial Counsel to Weitz and Luxenberg. Kendra Goldhirsch, an Associate in the Mass Torts Department of the firm, assisted in the research and writing of this article.

In the past few years, I have had the pleasure of flying around the country to participate in pharmaceutical mass tort depositions. I have also been reading lots of those transcripts and am appalled at the questioning, often by highly paid associates, that permeates today's litigation. There appears to be an almost universal disregard to posing a proper question. Instead, most of the young interrogators I have come across try to construct a question out of a declaratory sentence with either a rising inflection or a tag-along word at the end. “You're a dermatologist, right?” While such a question is not objectionable, it is one that is guaranteed to sow future improper ones because objectionable questions are habit-forming.

Although most material obtained in depositions is never utilized, nevertheless if a motion for summary judgment is made, some issues need admissible evidence. How can a lawyer overcome the habit of asking poorly propounded questions? In Spanish, a question is preceded by an inverted question mark. This gives the reader
advance notice of the type of sentence that follows. Lawyers should keep that custom in mind to remind themselves that questions should be just that, not declarations. A question is a request for information (“Are you a dermatologist?”). It is not a declarative statement, i.e., one that states a proposition. Perhaps a look at some of the questions I have gleaned from actual transcripts will serve as a lesson in how to avoid these problems.

Tag Questions

A “tag question” is one that is followed by a tag such as, “right?” or “correct?” Although they can be answered with a “yes” or “no,” these questions often get the questioner into trouble.

Q: “You thought that the medication could cause inflammatory bowel disease, right?”

A: “No.”

Now what does that answer mean? That the witness did not think the medication causes inflammatory bowel disease? Or does the witness think the opposite? If the court even permitted the question, the jury might find it confusing. The question should be:

Q: “Did you believe the medication could cause inflammatory bowel disease?”

A good trial lawyer will never ask the witness a question with the tag, “right?” The attorney might get a laugh out of a jury, as I personally have seen, if the witness says “Wrong!” The form of every question should elicit a “yes” or “no” answer.

Close-Ended or Limiting Questions

“Are you a gastroenterologist?” is a close-ended question because it limits the witness to a narrow choice. A better question would be “What, if any, are your specialties?” That question may also save you a lot of questions in between, e.g., “Are you a general practitioner?” “Are you a neurologist?” Open ' or non-limiting ' questions will also compel a witness to testify to a list of items, some of which you may have otherwise overlooked if you asked limiting questions.

Negative Questions

Never ask questions that contain a negative word in the phrasing.

Q: “You didn't tell the patient the risks, did you?”

Suppose the witness says “yes.” Does that mean the witness did not tell the patient the risks, or that he did? The proper question is:

Q: “Did you inform the patient of any risks?” or, “What risks, if any, did you tell the patient about?”

Here's another one:

Q: “You don't have a PDR in your office, do you?”

A: “Yes.”

No information was gleaned from that question and answer. Such questions are almost always objectionable. because the inquirer does not know what the witness is responding to.

The proper form would have been, “Do you have a PDR in your office?” Another fruitless line of questioning is, “Do you know ' ?” Or “Do you recall ' ?” These are almost always objectionable because the inquirer does know what the witness is responding to.

Q: “Did you know that Dr. Smith weighed the patient?”

If the witness says “No,” is he saying he did not know Dr. Smith weighed the patient or that Dr. Smith did not weigh the patient?

Q: “Do you recall that Mr. Jones told you he wanted to take that medication?”

A: “No.”

Is the witness saying he does not recall or that Mr. Jones did not want to take the medication?

The minute an attorney hears the words “Do you know,” or “Do you recall,” s/he should be ready to object to the form.

'Wh' Questions

The questioner should use “who,” “whom,” “whose,” “what” and “why” in addition to “how.” You can never go wrong with a question that incorporates these interrogative pronouns. “Why” is one of the best words to use at a deposition. Most lawyers hardly ever ask a witness “why” s/he did something.

Q: “Why did you write that e-mail?”

Q: “Why did you say in that e-mail that ' ?”

Q: “Why did your automobile hit the plaintiff?”

“Why” questions always provide the most probing avenue of inquiry. A “state-of-mind” objection, i.e., that the question is asking the witness's “state of mind” is an improper objection even at trial. A witness can be asked about his own state of mind and why he did or did not do something; the question is only objectionable if it asks the witness why someone else did or thought something.

Using 'and' in a Question

This is almost always an objectionable form of questioning. “Are you married and living in Brooklyn?” If the witness says “No,” then you will have to ask, “Are you married?” and then, “Are you living in Brooklyn?” So why not just ask that in the first place. Avoid using “and.”

Questions with 'or'

These, too, are almost always objectionable. “Do you live in Brooklyn or the Bronx?” Just ask “Where do you live?”

Conclusion

At trial, a smooth examination between witness and lawyer will clarify the issues that the lawyer wants the jury to understand; however, if many objections are sustained, the jurors will lose their trend of thought. Therefore, at depositions try to envision yourself in front of a jury when you are posing questions (and bring along this article).

Larry Goldhirsch, a member of this newsletter's Board of Editors, is Trial Counsel to Weitz and Luxenberg. Kendra Goldhirsch, an Associate in the Mass Torts Department of the firm, assisted in the research and writing of this article.