How Not To Ask A Question

Digging through an old file on a settled case, I came across some notes that I made during a deposition I was defending. It was a simple hit in the rear auto case and I jotted down some of the questions the defense lawyer asked.

Each question, it seemed, was more wretched than the next. None were spoken in plain English:

What were the points of impact between your vehicle and the adverse vehicle?

Were there any traffic control devices?

Did  you notice blood on your person?

Did you get out of the vehicle yourself or did you get out with assistance?

What was the nature of your conversation?

The worst part about these questions, I think, is that the lawyer was working from a script.

I’m fairly confident that any 10-year-old could ask better questions. All you really need, to get this type of basic information, is natural human curiosity to find out what happened. It was the tortured attempt to sound like a lawyer that made me laugh to myself and take notes.

I was reminded of those notes yesterday when I read Bryan Garner’s blog post:  Is there ever a good reason to use “hereby” in your writing?

It isn’t really hard to abuse the English language. All you need to do is go to law school.

Perhaps some young lawyers out there will recognize themselves as they struggle to ask deposition or trial questions.

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5 Responses Leave a comment

  • Mark Cobb Law Group 2012.12.5 at 16:24 | Quote

    It’s easy to spot the natural litigator and those who aren’t so natural at it by looking at the questions they ask and the ease and comfort they have with the deponent. And, congratulations on being listed in the ABA’s inaugural bLAWg Hall of Fame!

  • Eric Turkewitz 2012.12.5 at 16:35 | Quote

    It’s easy to spot the natural litigator and those who aren’t so natural at it by looking at the questions they ask and the ease and comfort they have with the deponent.

    Perhaps, but I think of it as being easy to spot the person that didn’t have a good mentor.

  • David Faulkner 2012.12.5 at 22:15 | Quote

    For the life of me I don’t understand why lawyers have to go about things in such contorted fashion. Just speak like a normal human being. I am also always amazed at the degreee to which lawyers fail to listen to the answers they get. The robot litigator fails!

  • Adam 2012.12.24 at 13:39 | Quote

    Asking these questions in “plain english” makes them ambiguous and objectionable. And yes I know some non-practitioner is going to point out that objections in depositions are very limited but those of you who actually depose witnesses in MVA cases know that attorneys direct their clients not to answer all the time and object to questions by asking their own witness the question they want the witness to answer. Am I going to file a motion to compel to bring the witness back to answer my question? Am I going to actually to take the reporter and the other lawyer over to the assigned judge’s chambers and interrupt them because we can’t agree on whether a question is appropriate? Obviously not, so we just ask the right question in the first place.

    **What were the points of impact between your vehicle and the adverse vehicle?** One could instead ask “where did the adverse vehicle hit your vehicle?” Objection, what do you mean by where – what side? what neighborhood? what street?

    **Were there any traffic control devices?** One could ask “were there any stop signs, traffic lights, yield signs, etc?” Objection, by traffic light do you mean the standard red yellow and green or does that include a flashing yellow light?

    **Did you notice blood on your person?** One could ask “was there any blood on your person?” Objection, this deposition is to the extent of the witness’s knowledge and recollection, he can’t definitively say whether there was blood on his clothing, he can only say whether he observed any.

    I’m not sure how the other two questions could be asked in plainer english. And not for nothing, but when you start asking questions in a form that your adversary is not used to, they start objecting to stuff that isn’t even objectionable because you’ve caught them off guard and they think you’re up to something. Isn’t there anything to be said for having the deposition go smoothly?

    To David Faulkner’s point: I think that younger lawyers tend to follow a rigid script format rather than a flexible checklist format and they’re afraid to let the witness take them where the deposition is naturally going because they don’t want to get thrown off the script and miss something, when the reality is that when the witness has just said something crucial on liability, it would make sense to probe and then circle back later to the degree of tint on the windshield.

  • Eric Turkewitz 2012.12.24 at 13:58 | Quote

    What were the points of impact between your vehicle and the adverse vehicle?

    Which part of his car was involved in the collision?
    Which part of your car was involved in the collision?

    One could ask “were there any stop signs, traffic lights, yield signs, etc?” Objection, by traffic light do you mean the standard red yellow and green or does that include a flashing yellow light?

    That is called obstruction, it is not an objection.

    **Did you notice blood on your person?** One could ask “was there any blood on your person?” Objection, this deposition is to the extent of the witness’s knowledge and recollection, he can’t definitively say whether there was blood on his clothing, he can only say whether he observed any.

    Were you bleeding?
    Did you see any blood on you?
    Do you know who’s blood it was?

    If lawyers use the objection merely as a means of obstruction, the only recourse is to take it to the judge.

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