T3 B14 Key Questions- Interview Policy Sub-Group Fdr- Book Excerpts on Interviewing- 1st Pg for Reference 925

8/14/2019 T3 B14 Key Questions- Interview Policy Sub-Group Fdr- Book Excerpts on Interviewing- 1st Pg for Reference 925

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Chapter Eight

STYLE, ORGANIZATION, AND OTHERMATTERS

"The partisan, when he is engaged in a dispute,cares nothing about the rights of the question,but is anxious only to convince hishearers ofhis own assertions." Socrates

The interrogating attorney can bring many styles to the depositionand many methods of organizing questioning of witnesses. Theattorney's techniques vary from witness to witness and from case tocase. The common thread, however, is the need for the attorney to findways to encourage the witness to talk and to tell his story completely, sothat no surprises pop up at trial.

8.1 STYLE

At a deposition, you should be assertive, bold, controlling1",deferential, effective, fair, generous, hospitable, intelligent, just, kind,lucky, magnanimous, nurturing, original, professional, questioning,retentive, studious, thorough, unexcitable, versatile, wary, xenophobic,yielding and*ea$


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QUESTIONING TECHNIQUES

"It is not every question that deservesan answer.' Publilius Syrus

Chapter Seven

The types of questions asked in a deposition can take many differentforms. Speaking broadly, however, all of the questions being asked canbe broken down into two different types: information-gatheringquestions and questions seeking admissions. Many attorneys err byasking only one or the other type of question. Effective attorneys knowhow and when to ask both types of questions.

7.1 INFORMATION-GATHERING QUESTIONING

la the information-lathering phase of a deposition, you areattempting to teaWWmuch as possible about the witness's relevanjfknowledge. In this phase you should focus on encouraging the witnessto talkto lecture, to reminisce, to discuss, to evaluategenerally, tospeak as freely as possible, without the constant intrusion of narrowquestions that invite narrow answers'. Your focus should not be upondisplaying your own knowledge and how well you already understandthe facts of the case, but in learning new facts from the witness.

For ease of analysis, consider the questioning during a discoverydeposition as having three phases: the open phase, the clarificationphase, and the closing-off and pinning-down phase. You can oftenweave back and forth in these three phases or approaches, so that youexamine one topic first with open questions, then ask clarifyingquestions on that topic, and finally pin down the witness on details orparticularly helpful information with more controlling questions.

7,1.1 The Open PhaseIn the open phase your questioning should be as wide open as the

direct examination questioning of a trusted and competent witness attrial. Picture this aspect of the deposition like the wide mouth of a

, gathering up everything that might be useful to understandingwinning the case.


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Chapter Five

PREPARING TO TAKE THE DEPOSITION

"Speak without emphasizing your words.Leave other people to discover what it isthat you have said; and as their minds are slow,you can make your escape in time." Schopenhauer

5.1 YOUR FRAME OF MIND

In considering the attitude or approach to be used in taking thedeposition, you should review your purpose in taking the deposition. If/our primary purpose is to discover new information, then to the extentthat you are only reviewing things already known, confirmingpreconceptions, or displaying your own knowledge of the facts, you arenot discovering new information and you may be wasting valuableopportunities to gain knowledge of what your opponent will present attrial or to gain evidence that you may use yourself. Consider the followingtwo approaches to questioning a witness in a product liability case:

Q. Mr. Mikionis, isn't it true that you should have used harderwood for the header in the garage that held the torsion springassembly?

A. No.

Q. Don't you agree that the wood was just not hard enough, ordense enough, to hold that spring assembly, given the shortscrews that were used?

A. No.

Q. With the wallboard installed over the wood header, the screws

just didn't have enough penetration into the wood to safely holdthat spring assembly, did they?

A. I don't agree.

Q. Well, why don't you tell me why you don't agree?A. The primary cause of the failure of this spring assembly system

was the use by the installer of an impact wrench to drive thescrews into the header, through the wallboard. That wrench

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Chapter Eleven

OBNOXIOUS QR OBSTRUCTIONISTDEFENDING COUNSEL

"[The enemy]must be hounded an dannihilated at every step and alltheir measures frustrated." Joseph Stalin

Some attorneys believe it is their job in defending a deposition toprevent the discovery of information at virtually any cost. At least threereasons account for such behavior: first, the attorney is unprepared todefend the deposition and is desperate to avoid the substance of the casewhere he is ignorant; second, the attorney is inexperienced indepositions and trial, and therefore lacks the confidence to allow thefacts to come out; and third, the attorney does not accept the premise ofthe Federal Rules of Civil Procedure that pretrial discovery of theopponent's information is favored 1 and trial by ambush, obfuscation,and surprise is disfavored. 2

The obstructionist attorney is more likely to prey upon young orapparently inexperienced counsel, whom he believes he can intimidate,but he may try his tactics on any attorney in any deposition, from thesmall tort case to the multi-district commercial contract and RICOmatter. A few, simple techniques will help you to control theobstructionist attorney; if they do not control him, at least thetechniques will help you to complete the deposition despite theinterference.

1. The goal of the discovery rules is to promote "free and open" exchange of informationbetween the parties and to prevent surprise and delay. See, e.g., Davis v. Romney, 55 F.R.D.337 (D. Pa. 1972); U.S. v. I.B.M., 68 F.R.D. 315 (D.N.Y. 1974); Wiener King, Inc. v. WienerKing Corp., 615 F.2d 512 (3d Cir. 1980).2. From time to time, it seems that a "fourth category 0 attorney is discovered the absolutejerkbut, like the "new" dinosaur that turns out to be the scrambled bones of previouslyknown dinosaurs, the "jerk" usually turns out to be an energetic combination of two or allthree of the previously known categories.

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T3 B14 Key Questions- Interview Policy Sub-Group Fdr- Book Excerpts on Interviewing- 1st Pg for Reference 925