Education, work history, communications between the parties, key documents and relevant events—all are important topics that should be explored in depositions. But what about the so-called "ultimate" questions? Did a party breach the agreement? Is a certain position taken in the pleadings meritorious? Does the witness believe in his principal's case? Are there factors that dictate an outcome different from the one sought in the complaint? Don't be afraid to ask the $64,000 question—you may just get the answer you want.
Many litigators are familiar with the story of the regrettable final question asked during the trial of a man accused of biting off another man's ear. After the plaintiff's witness admitted that he did not see the biting and that the lights were off at the time of the attack, counsel for the defense asked the witness whether someone other than the defendant might have been the perpetrator, to which the witness replied that he later saw the defendant spit out the ear. This story is one of many that support the oft-cited rule that a lawyer should never ask the ultimate question if prior answers lead inexorably to the desired conclusion, and the corollary that an attorney should never ask a question to which he or she does not know the answer.
But these are rules of trial practice and can be counterproductive when blindly applied during depositions. Too often lawyers are afraid to ask the ultimate question. Doing so may be seen as sophomoric or taken as a sign of weakness. It may indicate that the lawyer does not have a firm grasp of the facts, and can be embarrassing if the witness gives the wrong answer. But the risks are often worth the candle, and just as truth can be stranger than fiction, witnesses will sometimes give surprisingly good answers to key questions, if only they are given the chance.
In a case involving rights to a prototype for an oil-water separator (a machine that uses a centrifuge to separate fluids in industrial and environmental applications), I began to sense that the plaintiffs, who were partners in an enterprise formed to develop the machine with my client, were not on the same page. As the case progressed I discerned that their differences were serious and that the partner who was driving the suit had not conferred with the other prior to filing it. During the deposition of this other partner I got cues that he was upset with the first partner and that although he stood to gain from a successful lawsuit, he was not totally on board with the decision to sue. After an hour of lead-up questions, during which I established that some of the facts needed to support the plaintiffs' claims were probably lacking, I asked the partner whether there was any real basis for the partnership's case against my client, to which he responded, "None whatsoever."
Although one partner's view on the merits of the case would not defeat the partnership's claim as a matter of law, as a practical matter this admission was devastating. After the presentation of the plaintiffs' case in chief the judge entered a directed verdict, holding that the facts elicited during cross-examination prevented a finding in plaintiffs' favor. The $64,000 (actually, $4 million) admission noted above no doubt played a role in showing the judge that the plaintiffs lacked conviction, which made it easier for him to find that they had failed to make a prima facie case.
What is the lesson? Master the relevant facts. Understand the documents. Establish the chronology so that you have a foundation on which to build your deposition questions. Search for the answers you don't want to hear so that you can prepare for them prior to trial. But, come out of your lawyer's stiff shell. Ask common sense questions. Ask the questions someone might pose in everyday conversation. Did someone lie during a negotiation? Who really is to blame for the failure of a business venture? Why is one party's position more plausible than the other's? At worst, the witness will support your adversary's claim, and you are trained to respond to that. But you might elicit some helpful admissions, and you may get a candid perspective that leads you to other useful areas of inquiry. Give the witness a chance to talk like a normal person and not a deponent. Don't confine yourself to the unnatural exchange that comes with short, defensive questions. Have the witness explain your opponent's position. And, when the moment is right, seek the ultimate conclusion. You may be surprised what you hear if only you ask.
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