When the Admission Isn't Made

Sometimes moving abruptly from the specific to the general in the questioning can produce a revealing reaction from the deponent, particularly when he is in fact guilty of conscious wrongdoing. Take a case in which plaintiff alleges that defendant intentionally made false and misleading statements about the financial viability of an energy company, of which he was chief executive officer, not only to potential investors, but also to regulatory authorities, including the Securities and Exchange Commission (SEC). Suppose defendant had, say, six meetings with representatives of the SEC over 18 months, during which he made certain statements about his company’s financial health; one month after the last such meeting, the company failed. In his answer to the complaint, defendant denies making any false or misleading statements, intentionally or otherwise, about his company’s financial position to plaintiff or anybody else. Defendant’s deposition is noticed.

At some point in the deposition, counsel for plaintiff-investors will want to question the defendant-deponent closely as to who said what at each of these meetings with the SEC.

In the midst of detailed questioning about, perhaps, the second of these meetings, counsel for plaintiffs might want to spring a very general question, such as, “At any time in your dealings with representatives of the SEC did you make a statement that you knew to be false when you made it?” If the defendant-deponent is in fact a scoundrel, his reaction to such a question might be a prolonged silence (with a “deer in headlights” look) followed by a weak “No.” And if asked why it took him so long to answer, he may say something like, “I was reviewing in my mind all of the statements that I made during the half dozen meetings over 18 months.” Is that how an honest man would react? Counsel for plaintiffs could argue, with considerable persuasiveness, that a man of integrity would answer the question with a prompt “No,” and would not need to scroll through each such conversation in his mind before replying.

This example helps to make the case for taking a videotaped deposition from such a witness. That is, the long pause between the initial question and the defendant-deponent’s answer of “No” will not show on the stenographic transcript – at most, the reporter will add the notation “PAUSE” after the question – and the defendant-deponent and his lawyer might well deny that there was a longer-than-usual delay between question and answer. The videotape will show beyond cavil what really happened.

Posing the ‘Either-Answer’ Question

Some questions afford you a line of attack regardless of the witness’s answer. Such questions often begin with, “Did it occur to you at that point that —?” This approach can be used effectively in many types of cases, including complex fraud, automobile collisions, products liability, and medical malpractice.

Suppose plaintiff in a complex fraud case alleges that defendant took nine separate steps, the last of which caused plaintiff to lose money. After ascertaining the facts of each step, counsel for defendant might ask plaintiff:

“Did it occur to you at that point that Ms. Donaldson might be attempting to defraud you?”

If plaintiff answers in the negative, the interrogator may ask her to confirm that defendant’s actions up to that point fell within the range of normal business conduct. If plaintiff concedes this, the facts allegedly constituting the fraud are narrowed. On the other hand, if plaintiff responds that it did occur to her that defendant might be perpetrating a fraud, she will have a more difficult time demonstrating that thereafter she acted reasonably in continuing to rely upon defendant’s representations despite her suspicions.

The same approach is available in a right-angle collision. Either driver may be asked:

“Did it occur to you at that point that an accident was about to happen?”

If the driver replies no, the answer may damage her case because the factfinder may conclude that, in view of the circumstances at that point, the driver should have recognized the risk of an accident and acted accordingly. If the driver answers affirmatively, however, the factfinder will judge her subsequent actions in light of the concededly recognized risk of an accident. Either way, the opponent has gained an edge.

The same technique can work in a products liability case. In questioning defendant’s safety engineer, plaintiff’s attorney may ask:

“In light of the information available to you at that point, did you give consideration to a modification in the design of the punch press?”

If the deponent answers in the negative, she will risk being attacked at trial because “that thought never even crossed your mind, did it?” If the engineer says yes, then she will be forced to explain why, after specific consideration, she made no change.

This approach can be used effectively in medical malpractice litigation as well. For example, counsel for plaintiff might ask defendant treating physician:

“When you saw the patient on Sept. 4, 2002, and she had a fever and blood work results that could not be explained by any known condition that you were aware of, did it occur to you at that point that the patient had more than the flu?”

Repetition can make such questioning even more effective. Thus, counsel for plaintiff in the same case might follow up this way:

“Ten days later, when the same symptoms persisted and the patient made a new complaint about blurred vision, did it then occur to you . . . ?”

And so on.

Establishing the Obvious