The Illinois Trial Practice Weblog

Asked and Answered? A Tip for Asking a Question Again

During a deposition, you might be in a situation in which you'd like to ask a question a second or third time. For example, say a witness has testified that he recalls speaking with someone about an important topic. He's given you some of the details but claims he can't recall whether there were two meetings or only one.

You sense that he's covering something up. In response, you'd like root around a bit as lawyers do, exploring the witness's lack of recall--perhaps with a tone of incredulity in your voice. Adding to your suspicion is that when you ask, for a second time, "You really can't recall whether there was a second meeting?" the opposing lawyer suddenly sits up straight.

"Asked and answered!"

This sort of situation occurs often during depositions. If you want to return to a topic for whatever reason, there's a simple way to do it: proceed with your questioning for awhile, then return to the disputed point by asking whether any of the intervening questions has refreshed the witness's recollection.

"The deposition has now gone on about an hour. Is there anything we've discussed so far that's refreshed your recollection as to whether there was one meeting or two?"

This is a question that technically, you haven't asked before--leaving aside for the moment the propriety of the "asked and answered" objection in the first place. Since a witness's recollection can be refreshed with anything, including the experience of answering deposition questions, the question is appropriate. It might also lead to a more accurate answer than the one you've received so far.

While this tip isn't the most important you'll need in depositions, it's certainly one to keep in mind. Use it when you want to put a little additional pressure on a witness or when the opposing lawyer is trying to disrupt your flow with those bothersome "asked and answered" objections.

Related posts:

1. "Depositions: When the Witness Answers a Question You Didn't Ask."

2. "Practice Tip: Assume Your Deposition Witness Is Lying."

3. "Cross-Examining by Body Language and Tone of Voice."

The Use of Leading Questions During Illinois Depositions

As stated in Supreme Court Rule 206(c)(1), "The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules. The deponent may be questioned by any party as if under cross-examination."

Don't neglect this rule. Anyone asking questions at an Illinois discovery deposition is permitted to approach the party "as if under cross-examination," which includes the use leading questions.

Illinois evidence depositions, on the other hand, proceed as if the testimony were occurring at trial. "In an evidence deposition the examination and cross-examination shall be the same as though the deponent were testifying at the trial." Rule 206(c)(2). To determine whether leading questions are permitted in evidence depositions, you have to consider the order of questioning and whether the witness is hostile. See Rule 238. You also have to consider whether the leading question concerns a material point; often, leading questions are permissible on preliminary or insubstantial matters, according to the judge's discretion.

If you don't keep these rules in mind, you won't know what to do during a deposition when an opposing lawyers says, "Objection, leading."

If the objection is made during a discovery deposition, you can generally ignore it. If you don't know the rule, however, you might be led by the objection into posing the question in a non-leading way, thereby depriving yourself of the useful tool of leading questions when it's technically available to you.

If the objection is made during an evidence deposition, you should wade through the analysis described above and decide whether or not the objection is appropriate.

Related posts:

1. "When Are Leading Questions Permitted During Federal-Court Depositions?"

2. "How to Ask a Leading Question."

About This Weblog: the Deposition Category

Every post in this weblog is organized into categories, which you'll find listed in a column on the left. Since I started this weblog in 2004, I've done more than 100 posts on depositions, which you can easily find by navigating to the deposition category.

Some representative posts:

• "What To Ask in Every Deposition"
• "Practice Tip: Assume Your Deposition Witness Is Lying"
• "Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial"
• "Stipulating to the Use of Prior Deposition Testimony at Trial"
• "Preparing Witnesses for Depositions: Here's a Step That's Often Forgotten"
• "Can You Make Your Depositions Shorter?"
• "Expert Depositions: Pay Attention to the Dates on the Expert's CV"

There's plenty here to read, all for free. And if you want to see even more of my writing about depositions, check out my book Deposition Checklists and Strategies (James Publishing 2006).

Depositions and Interpreters

Lawyers doing a deposition with an interpreter will want to look at two recent posts from Ron Miller at his Baltimore Injury Lawyer Blog:

• "Using Interpreters at Depositions"
• "More Deposition Tips"

In the second post, Miller also links to a third useful resource, "A Lawyer's Guide to Cross-Cultural Depositions," by Nina Ivanichvili.

Videotaping Your Opponent's Deposition

Situation: Your opponent notices a deposition. For one reason or another, you want to videotape it. Do you need your opponent's consent?

Obviously, the answer depends on the jurisdiction. The issue recently led to a dispute in New Jersey, as recounted here at Law.com. In short, the defense lawyer noticed the plaintiff's deposition and the plaintiff's lawyer wanted to videotape it. Since the plaintiff had suffered a brain injury, the plaintiff's lawyer wanted a record of the plaintiff's difficulty in answering questions. This difficulty might not be evident from the dry printed transcript, which wouldn't record pauses and the like.

As the rules in New Jersey didn't expressly provide for one party to videotape another party's deposition, the dispute had to be resolved by the court, which allowed the videotape. The decision is posted here (pdf).

What's the rule in Illinois? The situation is easier, as the rules expressly provide for videotaping another party's deposition. According to Rule 206(a)(2)--

(2) Audio-Visual Recording to be Used. If a party serving notice of deposition intends to record the deponent's testimony by use of an audio-visual recording device, the notice of deposition must so advise all parties to the deposition. If any other party intends to record the testimony of the witness by use of an audio-visual recording device, notice of that intent must likewise be served upon all other parties a reasonable time in advance. Such notices shall contain the name of the recording-device operator. After notice is given that a deposition will be recorded by an audio-visual recording device, any party may make a motion for relief in the form of a protective order under Rule 201. If a hearing is not held prior to the taking of the deposition, the recording shall be made subject to the court's ruling at a later time.

Illinois Supreme Court Rule 206(a)(2) (emphasis added). Though the rule allows videotaping without the need for consent, it also provides any party with the right to challenge the videotaping by way of a motion for protective order prior to the deposition.

Related posts:

1. "Controlling Abusive Counsel with Video Depositions."

2. "Videotaping the Deposition of Your Opposing Expert."

Depositions: When the Witness Answers a Question You Didn't Ask

Often during depositions, a witness will answer a question that's different than the one you asked. Lawyers with good deposition skills listen closely enough to a witness's answers to recognize this situation when it happens.

Example:

Q. Were you present for the meeting on February 22?

A. I wasn't at the office on February 22.

If you respond properly to this situation, you'll both take advantage of the witness's mistake (whether intentional or not) and regain control of the deposition.

What is the proper response? When the witness answers a question that's different than the one you asked, you have to figure out why (on the fly, of course). Among the possibilities are these:

• Your question wasn't clear. If this is the case, rephrase the question and ask again.
• Your question was clear but the witness heard it incorrectly. If you think this is what is going on, start over with the same question, then ask it again in a slightly different way to make sure the witness has understood.
• Your question was clear and the witness heard it correctly, but the witness was confused about its meaning. In this case, back up and start over, changing your phrasing slightly, if possible, but continuing to aim for short, clear, unambigous questions. Continue in this manner until you and the witness return to the same page.
• Your question was clear and the witness heard it and understood it, but the witness doesn't want to answer it. Rather than answering your question, the witness answered a slightly different question--one you didn't ask. 

If you suspect that this last possibility is what has occurred, ask the question again while getting ready to dig in -- the witness's reaction means you're probably onto something. You've entered an area that is making the witness uncomfortable, and you need to find out why.

If you make an effort to respond properly when the witness answers the wrong question, you´re less likely to waste the time you put into developing and fine-tuning your deposition outline.

Depositions: Boxing In the Witness

It's a simple but effective deposition tactic, one that should be used throughout a deposition. First, have the witness develop a list of all possibilities until the witness's memory is exhausted; then return to explore each possibility.

Q. Tell me why you fired X?
A. He did poor quality work, for one.
Q. What were the other reasons?
A. He didn't take instructions well.
Q. Besides doing poor quality work and failing to take instructions well, were there any other reasons you fired X?
A. He didn't turn in assignments on time and he didn't get to work on time.
Q. Other than doing poor quality work, failing to take instructions well, not turning in assignments on time, and not getting to work on time, were there other reasons that you fired X?
A. No.
Q. What do you mean when you say that X's work quality was "poor"?
. . .

This sort of questioning pattern will work in many of the areas you cover in a deposition. One advantage is that it will keep you organized and on track. A second advantage is that you will box the witness in with a "no" answer (like the second-to-last question in the example) that will serve as an impeaching response, should you need it later.

For other deposition tips like these, see my book Deposition Checklists and Strategies (James Publishing). You'll also find other tips, and more information about the book, in the following posts at Illinois Trial Practice--

• "Listing the Chapters in My Deposition Book"
• "A Plug for My Deposition Book: Some Specialized Deposition Outlines"
• "My Coverage of Expert Depositions in Deposition Checklists and Strategies"
• "Listing Some of the Practice Tips in My Deposition Book"
• "More Practice Tips from My Deposition Book"

Illinois Lawyers: Discovery Depositions Can Rarely Be Used as Substantive Evidence

In Illinois, we have two types of depositions, discovery and evidence, with different rules for each. Both types of depositions can be used to impeach, but only evidence depositions, generally speaking, can be used as substantive evidence.

A new case from the 5th District illustrates how discovery depositions can rarely be used for substantive evidence at trial. It's a point worth remembering. In Berry v. American Standard, Inc., the asbestos plaintiff died before either side had taken an evidence deposition (pdf). After the plaintiff died, the defendants filed a motion to prohibit the use of the plaintiff's discovery deposition at trial "on the ground that Supreme Court Rule 212(a)(5) bars that use where the deponent is a party to the action." The circuit court granted the motion, and also granted a motion for summary judgment on behalf of the defendants.

In barring the use of the deceased plaintiff's discovery deposition at trial, the appellate court noted that none of the exceptions in Rule 212(a) applied (impeachment, admission, as an exception to the hearsay rule, for purposes for which affidavits may be used, or as former testimony if not by a party). The court also noted the purpose of the rule: "knowing in advance that a deposition is for discovery only and hence of limited availability, counsel ordinarily do not urge technical objections, and the taking of the deposition proceeds informally and expeditiously." The court also held that the discovery deposition could not be considered a "dying declaration."

Anyone with an interest in the difference between discovery and evidence depositions in Illinois is urged to read the case.

An Expert-Related Practice Tip from Deposition Checklists and Strategies

This is just one of the many practice tips that you'll find liberally scattered throughout the eight chapters of my book, Deposition Checklists and Strategies (James Publishing):

§4:255 Practice Tip: What the Expert Did Not Do

Remember to ask the expert not only what he did to prepare himself to render an opinion, but what he didn’t do. Of course, you cannot come right out and ask, “Please tell me what you failed to do in rendering an opinion.” Instead, ask the expert whether he did or didn’t do specific things.

In a pharmaceutical case, ask the expert whether he performed these tasks in order to prepare himself to give an opinion:

• Ask the witness whether there was anything that would have been helpful to him in reaching an opinion, but which he lacked the time to do.
• If the witness answers with a list of things for which he lacked time to do, ask why conducting these steps would have helped him to reach an opinion.
• Ask the expert whether or not he personally examined the Plaintiff. If not, then all his knowledge about the Plaintiff’s medical condition must have come from the medical records.
• Ask the witness whether he read all the medical records. If so, is he confident that he obtained them all? Why? Did he ask the defendant’s lawyers to provide him with any additional medical records?
• Ask the witness whether he performed a search of all the relevant literature about the particular issue. If not, why not?
• Ask the expert whether he consulted with other experts in the field. If not, why not?
• Ask the expert if he reviewed all the documents in possession of the defendant that were relevant to his opinion. If so, who provided him with these documents, and how does he know he reviewed all that were relevant?

In other sorts of products-liability cases, you can ask whether the expert performed all relevant tests, conducted a literature search to determine whether there were other incidents of injury similar to the one that gave rise to the lawsuit, and so on.

For more information about the book, see this brochure at James Publishing (pdf). You can also learn more about the book in the following posts at Illinois Trial Practice--

• "Listing the Chapters in My Deposition Book"
• "A Plug for My Deposition Book: Some Specialized Deposition Outlines"
• "My Coverage of Expert Depositions in Deposition Checklists and Strategies"
• "Listing Some of the Practice Tips in My Deposition Book"
• "More Practice Tips from My Deposition Book"

A Lawyer's Duty: Control the Client at Depositions

Do lawyers have a duty to control their clients during depositions? Take a look at this recent article from Law.com--

Lawyer and Client Sanctioned Over Client's Conduct, Use of 'F Word' During Deposition

A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a "spectacular failure" because of the client's constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer's failure to rein him in.

In his 44-page opinion in GMAC Bank v. HTFC Corp., U.S. District Judge Eduardo C. Robreno found that Aaron Wider, the CEO of HTFC, engaged in "hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony."

In defending his actions, the lawyer representing the allegedly vulgar client said that he tried to control his client, but that his actions took place off the record. The judge's response? "[E]ven if this assertion is to be believed, [the client's] continuing misconduct indicates that whatever efforts [the lawyer] made were woefully ineffectual. In fact, [the lawyer's] meek attempts to intercede and his otherwise silent toleration of [the client's] conduct only emboldened [the client] to further flout the procedural rules."

So there you go: control your clients in depositions. If you can't, it probably means you shouldn't be representing them in the first place. I sure wouldn't.

Related posts:

1. "Controlling Your Client During Deposition."

2.  "Defending Depositions: Correcting Your Client's Unintentional Errors."