How do you get the witness to say exactly what you want them to say? Something that’s perfectly quotable? Something that makes your brief sing?

One of the most important things you must do is to ask leading questions. A lot of time in depositions, since there’s no jury there, the deposing lawyer gets out of the habit of asking leading questions, and just asks open ended questions.

Leading questions suggest the answer that you expect to get and literally “lead” the witness.  An open ended question does not suggest the answer.

An Example:

Assume that you are trying to establish that the deponent was stealing office supplies and that he knew that he should not have been taking those supplies.

Open Ended Questions

Here is an example transcript with open ended questions.  The first questions are not very heavy hitting, but notice how this line of questioning gives the witness more control over the responses.

Q: Did you have access to the supply cabinet?

A: Yes.  All employees do.

Q: Did you ever use the supplies?

A: Sure.  Everyone did.  They were there for us to use.

Q: Did you take any of the supplies outside of the office?

A: Sometimes maybe.

Q: How often?

A: Not very often.

Q: What kinds of things would you take out of the office?

A: Just a few supplies.  Not much.  The value was minimal.

Q: Did you know that taking these supplies was prohibited?

A: No

Leading Questions

Now let’s look at the same line of questioning with leading questions.  The witness could always disagree with the questions, but leading questions are more forceful, and they suggest to the witness you know the facts.  Many witnesses will agree with facts that you state if you phrase the questions as leading questions.  This technique will give you a much better transcript.

Q: You had access to the supply cabinet didn’t you?

A: Yes.  All employees do.

Q: You used these supplies for your office work, correct?

A: Sure.  Everyone did.  They were there for us to use.

Q: But you also took the supplies outside of the office?

A: Sometimes maybe.

Q: You took supplies from the office at least once per week every week for the last 3 months didn’t you?

A: I didn’t keep track, but I guess so.

Q: You took boxes of supplies out of the office, right?

A: Just a few supplies.  Not much.  The value was minimal.

Q: You knew that your company expressly prohibited taking supplies outside of the workplace, right?

A: No

There are a few other points to note here:

First, when you ask leading questions be sure to give details and avoid “wiggle words”.  The question “You took supplies from the office at least once per week every week for the last 3 months didn’t you” is preferable to “You took supplies frequently”.  “Frequently” is ambiguous and leaves room for interpretation and debate.  Specific times and amounts are better.

Second, when the witness is unsure they are more likely to agree with your assertion when the question is leading and the witness perceives you to know the facts in detail.

Third, in the open-ended example the witness’s answer to the penultimate question was generally responsive (Q. What kinds of things would you take out of the office? A: Just a few supplies.  Not much.  The value was minimal.)  In the leading example the same answer was much less responsive because it isn’t clear if the witness agreed or disagreed with the assertion in the question.  (Q: You took boxes of supplies out of the office, right? )  A good lawyer would repeat the question again to attempt to get the witness to agree with the assertion in the leading question.  This is another benefit to the leading questions: it forces you to follow up and get specific Yes/No responses to specific details, which is much more valuable than generalities like “just a few” and “not much”

Finally, the answer to the last question was the same, but the assertion made in the leading version is more forceful and it subtly implies facts that were not implied in the open-ended version.

Of course at times open ended questions are necessary, because you might really need to know what happened. Maybe you truly don’t know where the deponent went after work every day. But when you’ve set your target up properly beforehand, and you know already what you want the witness to say, if you ask the leading question, you have a few benefits:

1. If the witness agrees with you, then they’re agreeing with YOUR version, YOUR phrasing, YOUR characterization of facts.
2. You take charge of the deposition, because you’re the one who’s asserting what’s happening.

A lot of times this won’t work, perhaps the witness will baulk, or push back about what you’re saying or how you’re saying it. So that’s why you need to dig, keep pushing. Don’t just ask one or two leading questions, then go right back to “What happened next?”

You might not get every answer you want, but you will start to make progress toward your goal.