Litigation

Asked and Answered? A Tip for Asking a Question Again

By Evan Schaeffer

During a deposition, you might be in a situation in which you'd like to ask a question a second or third time. For example, say a witness has testified that he recalls speaking with someone about an important topic. He's given you some of the details but claims he can't recall whether there were two meetings or only one.

You sense that he's covering something up. In response, you'd like root around a bit as lawyers do, exploring the witness's lack of recall--perhaps with a tone of incredulity in your voice. Adding to your suspicion is that when you ask, for a second time, "You really can't recall whether there was a second meeting?" the opposing lawyer suddenly sits up straight.

"Asked and answered!"

This sort of situation occurs often during depositions. If you want to return to a topic for whatever reason, there's a simple way to do it: proceed with your questioning for awhile, then return to the disputed point by asking whether any of the intervening questions has refreshed the witness's recollection.

"The deposition has now gone on about an hour. Is there anything we've discussed so far that's refreshed your recollection as to whether there was one meeting or two?"

This is a question that technically, you haven't asked before--leaving aside for the moment the propriety of the "asked and answered" objection in the first place. Since a witness's recollection can be refreshed with anything, including the experience of answering deposition questions, the question is appropriate. It might also lead to a more accurate answer than the one you've received so far.

While this tip isn't the most important you'll need in depositions, it's certainly one to keep in mind. Use it when you want to put a little additional pressure on a witness or when the opposing lawyer is trying to disrupt your flow with those bothersome "asked and answered" objections.

Related posts:

1. "Depositions: When the Witness Answers a Question You Didn't Ask."

2. "Practice Tip: Assume Your Deposition Witness Is Lying."

3. "Cross-Examining by Body Language and Tone of Voice."

Full post as published by The Illinois Trial Practice Blog on October 02, 2008 (boomark / email).