Maureen A. Howard, Taking Better Depositions by Thinking "Outside the Box", June 2011 De Novo 12 (2011), https://digitalcommons.law.uw.edu/faculty-articles/516
While there are reasons a lawyer may ask questions in a deposition to confirm what she thinks she already knows—nailing down facts for a summary judgment motion, confirming factual and legal theories, perpetuating a witness’s testimony, or facilitating settlement by flexing favorable facts—gathering information the lawyer does not know remains the primary goal of almost every deposition. Despite this, lawyers too often ask questions based on what they already know, limiting the universe of answers and undermining the goal of gathering information.
By the time a lawyer notes depositions, she has already built a “working model” of the case based on client interviews, informal fact investigation, and review of documents and other preliminary discovery. It is easy to structure deposition questions based on this construct, but it presupposes that the lawyer’s pre-deposition view of the facts is complete and accurate. The better practice is to think “outside the box” and imagine the universe of information that could possibly exist—both positive and negative—and then craft your questions in a way that allows the witness to provide information beyond the four corners of your understanding of the case. To do this, begin each topic with a series of open-ended questions that invite the witness to talk generally about the subject. This allows for the possibility of unknown information to be revealed because you haven’t structured the question too narrowly.