When to ask deposition questions of your own witness

 Photo:  Deposition in our lovely conference room.

 Photo:  Deposition in our lovely conference room.

Usually I don't question my own witnesses in deposition.  The other side is taking the deposition.  And it's their job to do the asking.

But occasionally there are times when we need to help make sure the record is straight.  Here are some examples:

  • When the defense lawyer cuts off the answer, the witness should be given opportunity to respond fully.
  • When the defense lawyer bullies and confuses the witness, the witness should be given opportunity to revisit and clarify if needed
  • When the defense lawyer refuses to allow the witness to refer to notes or other records, the witness should be permitted to refresh their memory to ensure accuracy

Another example occurs mainly with expert witnesses.  The defense does not want the expert to testify about anything that is harmful to the defense case.  Instead the defense focuses only on trying to poke holes in the expert's opinions.  Under the discovery rules of almost all states, the expert's entire opinion and the basis for the opinion must be fully disclosed before trial deadlines.  Unless all of the expert's opinions are in a written report or disclosed in deposition, they will be excluded.  This means, if the defense does not ask about all the favorable opinions the expert has, the plaintiff attorney needs to do this on the record.

Lastly, if a case can or should be settled, sometimes questions should be asked to show the insurance adjusters the strength of the case.    The defense lawyers usually focus on the trying to tear apart different issues.  So it is up to the plaintiff to point out the strong points.  For example:

  • asking plaintiffs how they have been impacted by the injury
  • having doctors discuss future risk factors and implications
  • requesting lay witnesses to tell stories that illustrate the loss
  • having eye witnesses pound home where blame really lies

The decision of whether to ask questions must be well thought out.  Asking bad questions of your own witnesses can be worse than asking no questions at all.