Source of article Jury Insights.

Part 3:
Leading Questions;
Staying Real 

Depo Document  

 Breaking Up a Pattern of Leading Questions

Telephone Sales (“yes-set”):

If you’re like most people, you’re paying more for heating your home than ever before, right?


If I had a way for you to take hundreds of dollars off your energy bill, you’d want to do that, right?


If you found out that the government is literally paying people hundreds of dollars to put solar energy panels on their roofs, you would probably want to get in on that, wouldn’t you?


Opposing counsel may conduct a part of a deposition as a cross-examination-which can often sound like a telephone sales “yes-set.”

Instruct your key witness to recognize the construction of a series of  questions leading to a “yes” or “no” answer. Your witness should be particularly keen to spotting a sequential string of “yes” or “no” questions.

Always and Never

Always is a word to seldom use…

Instruct your witness to avoid the use of “always” and “never” unless the response refers to a “routine habit” (one of the 3 R’s of being truthful).

Teach your witness to break up the pace and rhythm of the leading questions by paraphrasing the question before offering a response. This will help your witness to qualify and limit the potential “all or none,” “always or never” implications of a yes or no answer. It will also help your witness to discover hidden presumptions within the question that the witness may otherwise miss.

Q: “This isn’t the first time you’ve attacked a doctor for bad treatment, is it?”

A: “This is the first time I have claimed negligent treatment by a physician.” 

Reinforce that the witness is to answer the question asked and nothing more.

Explain that the witness should not feel obligated to fill silence spaces, or respond to expectant glances by the interrogating attorney.

Staying in Reality versus Speculating

While more than 80% of a deposition may be nothing more than “what’s so… and so what,” a good part of the rest of the deposition may ask the witness to take a trip to Fantasy Island.

Explain the difference between concrete fact and guessing, but don’t believe for a minute that your witness is going to understand the difference.

The reason for this is that recollection is seldom complete and 100% certain, which leaves a lot of room for filling in the missing spaces with speculation. When opposing counsel uses a soft, friendly questioning approach, it can often disguise a beguiling invitation to engage in speculation.

It is not enough to tell your witness not to surmise, speculate, or participate in hypotheticals.

You must train your key witness to recognize and refuse invitations to make perceptual judgments of dates, time, size, distance, speed, etc.

Even if opposing counsel attempts to “bracket” a judgment, “well it wasn’t 50 mph was it?” and “it wasn’t 20 mph was it?” and so on, the witness must know how to navigate the response into a territory of reasonable inability to recall.

“I  know I was traveling within the speed limit.”  -or-

” I routinely drive within the speed limit by checking for road signs and looking at my speedometer. I cannot tell you my exact speed and I will not guess.” 

In most situations, the witness should decline drawing sketches which may imply scale, and not respond to sketches or non-records. If the record itself is a sketch (as in some police reports, etc.) the witness should decline to accept the scale that is presented in the sketch.  

Because memory is by its nature incomplete, not allowing opposing counsel to unreasonably pin down an answer becomes an important skill.

Every recollection has a “confidence” interval.  A person can be certain about a sequence of events, but not certain about exact timing. A driver may know a blue car was on the right, and a red car was on the left, but not know distances between them, or relative speeds of travel. 

Research has shown us that recollection can be manipulated and distorted through the process of suggestion. When a witness is shown parts of documents out of context or sequence, it may confuse or distort recollection.

When a “record” of a document exists, train your witness to ask for the complete document and not to examine a section of a document out of context.

In summary, there is a lot of Fantasy Island terrain, and if you do not train your witness to recognize it and steer clear, the witness is likely to travel there.

Alan J. Cohen Ph.D. LLC