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One of the prime reasons to spend the time and money to depose an adverse witness is to gather impeachment material.
Other than hiring a private investigator to delve into the witness’s past, the deposition is the most effective tool in the lawyer’s arsenal for uncovering dirt and chipping away at credibility. That includes attacking an eye-witness account, challenging an unfavorable opinion, exposing bias, and undermining believability.
Yet most lawyers don’t ask all of the basic, open-ended questions that could help achieve their impeachment goals.
In every deposition, there are questions tailored to the facts of the case, whether it is a business dispute or personal injury claim. But many (if not all) of these “killer” questions should be asked of adverse witnesses in every type of case. Many times you will strike out. That’s okay, because when you do connect with one of these questions, the result is likely to be a solid base hit – and occasionally a grand slam. The answers to these basic questions can be so damaging to the opponent’s case that the litigation will end on terms favorable to your client. And isn’t that the goal?
So here they are – The Top 10 Killer Deposition Questions:
- “Have you ever been arrested?” (And the follow-up: “Have you ever been convicted?”) Opposing counsel may go ballistic on this one, but it is a proper question. Remember, felony convictions and any convictions for fraud, dishonesty or moral turpitude are generally admissible for impeachment.
- “Have you ever been deposed before?” I ask this at the beginning of the deposition, as part of the standard admonition, when it sounds like an innocent inquiry related to the ground rules for the depo. But if the answer is ”yes,” I always follow up later with questions about the prior deposition(s). I also ask the related questions, “Have you ever testified in court?” and “Have you ever been a plaintiff or a defendant in another lawsuit?” Prior testimony and lawsuits can be a treasure trove of accusations and impeachment.
- “Have you ever seen the [plaintiff/defendant/employee] before the events related to this lawsuit?” This question may uncover connections between a supposedly independent witness and the other side.
- “Did you meet with the other side’s counsel before this deposition?” Pin down the number of meetings, where they occurred and how long they lasted. This information can help dismantle the claim of independence.
- “Have you signed any written statements/made any recorded statements/spoken to any reporters about the events related to this lawsuit?” To this list, you might add: “Have you posted any statements about these events on any internet site?” Of course, you will have conducted a search engine and, perhaps, database query on the witness as part of your preparation for the deposition, so you’ll know if he or she is lying.
- “Did you read any witness statements or depositions, listen to any recorded statements, look at any diagrams or photographs, or did somebody else read you any statements before the deposition?” Okay, this is more than one question, but I had to combine them here to meet the 10-question quota imposed by the title of this article.
- “Tell me everything you did to get ready for this deposition.” The answer can lead you to what the witness or opponent perceives as his or her weak spots, including areas of which you were unaware. After all, it is only natural to prepare for the hardest questions or topics. Remember to find out the specific documents reviewed, places visited and persons met with by the witness.
- “Was anyone else present when you met with your lawyer?” If a third party was present during the meeting, the witness may have waived the attorney-client privilege.
- “How did you find your attorney [doctor/chiropractor/therapist/expert]?” This can lead to interesting prior legal issues, lawsuits or self-interest/improper involvement on the part of opposing counsel.
- “Do you have your driver’s license with you?” If so, ask to see it. Take down the personal information and, if appropriate, read it into the record.
Of course, there’s more to taking a deposition than impeachment. But that’s my “top 10” — or so — general questions designed to uncover dirt.
©Copyright 2009. David Newdorf is Principal Attorney of his firm, Newdorf Legal in San Francisco and can be reached at firstname.lastname@example.org.