Should You Ever Ask Your Own Client Questions at a Deposition?

When you were preparing your client for his deposition, you probably told him not to volunteer anything that the opposing lawyer didn't ask about. Asking questions yourself would violate your own instructions to your client not to volunteer. This is one of the reasons why you rarely see lawyers asking their own clients questions at a deposition.

There are exceptions, of course. If your client's testimony on a key point was inaccurate, you can attempt to repair the damage with your own questions. If your client's testimony in a key area was damaging and needs to be explained, asking questions can allow your client an opportunity to give his explanation. Keep in mind, however, that if you ask questions for either of these reasons, it will send a signal to the opposing lawyer that you didn't prepare your client well enough and think you've been hurt by his testimony.  Don' take this step without thinking about it first, especially since your questions probably won't repair the damage.

Another common reason to question your own client is because you need to elicit facts that will be used to defend an upcoming motion. Since testimony at a deposition will carry greater weight than an affidavit when attached to a legal memorandum--psychologically, if not as a matter of legal rule--it often makes sense to establish the facts at your client's deposition. In sexual harassment cases, for example, it is common for the plaintiff's lawyer to ask questions that will be used to help defend a motion for summary judgment.

Comments

[ted woerthwein]

This is an important point sometimes overlooked by even alert attorneys. If your client hurts his or her case at deposition then his or her self serving affidavit produced with your response to the other sides motion for summary judgment is likely to fail.

Clarifying a misstatement, even if it creates an impeachment, goes to the witness' credibility. The credibility of a witness is a question for the trier of fact to resolve, not a matter to be decided on a motion for summary judgment.

In Pedersen v. Joliet Park District, 136 Ill. App. 3d 172, 483 N.E.2d 21, (3d Dist 1985), the plaintiff slipped and fell to the floor while playing basketball in defendant's gymnasium. Plaintiff argued that a genuine issue of fact existed with respect to whether plaintiff's injury was caused by a dusty and slippery gym floor.

However, in his deposition, the plaintiff had stated that at the time of his injury the floor did not appear to be dusty, the floor did not appear or feel slippery, and the floor seemed like it was clean and in good shape.

The defendant moved for summary judgment based upon plaintiff's deposition. In response, plaintiff filed an affidavit in which he asserted that when he returned to the scene of his injury two years after the incident with his expert witness, he began to remember that at the time of the injury the tile surface of the gym floor was dusty.

The trial court granted summary judgment for the defendant. The appellate court affirmed, stating, "we find unpersuasive the plaintiff's attempt to create an issue of fact by stating in his deposition that [the floor] was not dusty, and then by contradicting himself in a later affidavit." Pedersen, 136 Ill. App. 3d at 176.

In Schulenburg v. Rexnord, Inc., 254 Ill. App. 3d 445, 451, 627 N.E.2d 16, 20, (1Dist. 1993), the conflicting statements were in the deposition. The trial court granted summary judgment but the appellate court reversed stating that the contradictory statements appear in the deposition not a self serving affidavit and thus went to credibility and were not susceptible to a motion for summary judgment.

Ted Woerthwein
Woerthwein & Miller
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