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Practice Tip: The Do's and Don'ts of Depositions

By Larry Goldhirsch

In the past few years, I have had the pleasure of flying around the country to participate in pharmaceutical mass tort depositions. I have also been reading lots of those transcripts and am appalled at the questioning, often by highly paid associates, that permeates today's litigation. There appears to be an almost universal disregard to posing a proper question. Instead, most of the young interrogators I have come across try to construct a question out of a declaratory sentence with either a rising inflection or a tag-along word at the end. “You're a dermatologist, right?” While such a question is not objectionable, it is one that is guaranteed to sow future improper ones because objectionable questions are habit-forming.

Although most material obtained in depositions is never utilized, nevertheless if a motion for summary judgment is made, some issues need admissible evidence. How can a lawyer overcome the habit of asking poorly propounded questions? In Spanish, a question is preceded by an inverted question mark. This gives the reader
advance notice of the type of sentence that follows. Lawyers should keep that custom in mind to remind themselves that questions should be just that, not declarations. A question is a request for information (“Are you a dermatologist?”). It is not a declarative statement, i.e., one that states a proposition. Perhaps a look at some of the questions I have gleaned from actual transcripts will serve as a lesson in how to avoid these problems.

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