Questioning the Fact Witness

At the outset, you may want the deponent to commit himself to certain propositions on seemingly non-controversial matters of policy and practice before turning to the central issues. If the deponent perceives such questions as unimportant, he may readily make significant concessions.

Two areas in which it may be particularly helpful to establish the deponent’s policy and practice — correspondence and note taking — are treated separately in the following subsections. Other important areas include the deponent’s policy and practice with respect to reviewing certain types of documents routinely sent to her (for example, sales reports, personnel evaluations, customer complaints); consulting with or reporting to others about significant events and decisions; retaining documents; and monitoring activities in particular areas.

Correspondence

Suppose that these are the underlying facts: there was correspondence between the parties; at some point an officer of defendant sent a letter to plaintiff stating that certain items favorable to defendant’s case were true, and plaintiff made no written response to that letter. How does counsel for defendant squeeze the maximum benefit from these helpful facts in deposing plaintiff’s representatives?

If the interrogator studies the correspondence, she may find that her client sent 11 letters before the crucial letter and that plaintiff’s president responded only to the fifth and the eighth to correct some inaccuracy. In deposing plaintiff’s president, the interrogator may take the letters in turn and ask him to confirm that he received each letter, that he read it, that the letter contained an accurate statement of the facts, that he did not respond to it, and that he did not respond because the letter was accurate. The interrogator will further ask the deponent to confirm that he responded to the fifth and eighth letters and that he did so to correct inaccuracies. After discussing perhaps the eighth or ninth letter, the interrogator may ask the deponent to confirm that his general policy or practice was to respond in writing only to letters that were inaccurate in some way.

The deposing attorney should not wait too long to pose this question because the closer she comes to the date of the key document, the greater the risk that the deponent will have his guard up. The interrogator has a better chance of obtaining the admission on policy or practice if she proceeds in this painstaking way than if she asks without preamble whether the deponent’s policy or practice was to respond in writing only to inaccurate letters.

The described scenario raises again the problem of the conflicting objectives of discovery and admissions. Suppose the deponent concedes that his policy or practice was as the interrogator suggested. The interrogator must decide whether to stop that line of questioning, because she has secured a favorable admission, or to continue and ask the deponent to confirm that, consistent with his policy or practice, he failed to respond in writing to the key letter because it was fully accurate. If the interrogator halts the questioning, she will have no inkling how the deponent would answer the critical question at trial.

If, on the other hand, the interrogator continues and poses the key question, the deponent may feel compelled to make the desired admission by force of the series of answers he has just given, thus aiding the interrogator in winning her case. But, just as likely, the deponent may refuse to make the desired admission, and instead give a self-serving but credible explanation of his failure to respond to the key letter. If that happens, the interrogator will learn what she must face at trial; but the witness’s explanation at trial may take on an extra patina of credibility because it was also given at deposition.

As an alternative, the interrogator could follow a middle course and ask the deponent only whether he received the key letter and whether he responded to it-and nothing more. Even with this approach, however, the interrogator risks losing the admission because the deponent may not cooperate by giving one-word answers without adding an explanatory gloss.

Notes