The Two Most Important Questions to Ask During A Discovery Deposition [Part I]

Many lawyers approach discovery depositions of hostile witnesses as if they are cross-examining at trial - fearful to ask open ended questions because the witness may give a "bad" answer that might hurt their side's case. This is particularly true of young lawyers who are fearful of being accused of supposedly placing harmful evidence in the record.   What a big mistake.

A deposition is the time to get the bad news out.  There is a reason why it is called discovery.

This is the time to invite the other side's witnesses to tell you everything they possibly can about why your side should lose.  Revel in these "bad" answers - don't cringe.  Draw them out and blossom them as fully as the witness is willing to go.  Make sure that you carefully dissect every part or premise of a "bad" answer and make sure that the witness has told you everything and anything about each individual component upon which the answer is based.  See how far they will go and take them there.

The only time that one should treat a deposition of a hostile witness as if it is a trial cross-examination is the deposition of a third party witness who is not within the court's subpoena jurisdiction and who you know will not come to trial or a witness who for some other reason may not be available at trial.

So here are two questions that should be asked often during a hostile witness discovery deposition: "Why?"  and "Is that all you have to say about this?"  Open ended questions that all of us have been taught to avoid at trial.  And for the most part they shouldn't be asked at trial.  But during discovery, they are all important if you want to know what the other's side's case is about and better prepare for it.

It is this simple - when do you want to hear the other side's best story - at a discovery deposition, in an affidavit filed with a summary judgment brief or worse yet, at trial?