Day: August 2, 2017

Like most lawyers, when I started taking depositions … I was bad at it. What’s worse is, I didn’t realize they were bad until I was in trial with them. During cross-examination, I’d go to impeach the witness, only to realize that I had asked a confusing question or allowed the witness to ramble and give long, convoluted answers. Both make for bad impeachments.

The more cases I tried, the more my deposition practice improved, both by literal trial and error and gathering tips from fellow trial attorneys.

Now, in depositions, I ask Bullet Point Questions.

Here’s how you use Bullet Point Questions:

Step One:

Ask the witness an Open-Ended Question.

  • If the witness gives a short concise answer that consists of only one fact or bullet point, move on to your next question.
  • If the witness’ answer contains more than one fact or bullet point, go to the second step.

Step Two:

Break down the witness’ answer into separate Leading Questions that contain one fact or Bullet point per Leading Question

Example:

Q:         What color was Billy’s jacket?

A:         Well, it was raining that night, so I couldn’t see when I first pulled up. But when I got closer, I could see that Billy’s friend was smoking the marijuana Billy had sold to him. And I was surprised to see Billy in a green jacket because he normally wears black when he comes over, since that’s what he wears to steal from orphanages.

This witness gave us an answer that has multiple facts or bullet points. That makes it a bad answer to impeach him/her with in trial. So, to clean it up and make it useful for us, we break down that answer into multiple, single bullet point, leading questions. Let’s see how:

Q:         Okay, let’s break that down. It was raining that night?

A:         Yes.

Q:         You say you saw Billy’s friend smoking marijuana?

A:         Yes.

Q:         You say that Billy sold him the marijuana?

A:         Yes.

Q:         Billy was wearing a green jacket?

A:         Yes.

Boom. Now you have the answer you want in a clear yes or no format.

            NOTE

When I begin to ask Bullet Point Questions, I often explicitly tell the witness what I’m about to do: “Okay, let’s break that answer down.” Doing so allows the witness to understand what’s about to happen and therefore be more cooperative and willing to answer the leading questions with a simple “yes” or “no.”

You will also notice that I asked some leading questions that were seemingly harmful to my client before I asked the question that I actually wanted answered. I did so because witnesses become less likely to cooperate with you when they feel that you disregard what they say. So, I repeat their own answer to them in the form of Bullet Point Questions. It makes a witness comfortable and more cooperative.  It’s a form of Mirroring.

In addition, not all deposition testimony comes out at trial (unless it is a trial deposition in civil cases), so do not shy away from bad facts, instead, explore them and gather information … one Bullet Point Question at a time.

Example:

Here’s an example of how failing to use the Bullet Points Method can hurt you, your client, and your case.

Let’s say you’re in trial. And in this trial, the color of your client’s car is pivotal to your case. Let’s say that the color is important because the crime was committed in a Blood Red car and your client’s car is Lime Green.

Now, let’s say that a witness named Lyin Lenny takes the stand and he has it out for your client. Lyin Lenny testifies on direct examination, contrary to his deposition testimony, that your client’s car is Blood Red. So you stand up, fire in your belly, about to start your cross-examination with an impeachment (the most fun way to start), and to show the jury that Lyin Lenny is lyin’.

You walk past your client, past the table, past the podium, and you look down at your deposition transcript. Here’s the quote that you have to impeach Lyin Lenny:

Q:         Lyin Lenny, what color is my client’s car?

A:         Well, your client is a bad dude who runs with the Aryan Nation. I try to stay away from him. But I’ve seen him patrolling their turf in his car.  So, to answer your question, a couple months ago, when your client got out of prison for the second time, he got himself a lime green car.

That is a terrible answer to impeach Lyin Lenny with. If you do impeach him with that, many judges will require you to read Lyin Lenny’s whole answer. Even if Lyin Lenny’s allegations are total lies, they significantly damage your case as soon as the jury hears them.

And all because you failed to ask your Bullet Point Questions.

Compare the deposition transcript you have to impeach Lyin Lenny with when you use the Bullet Point Method:

Q:         Lyin Lenny, what color is my client’s car?

A:         Well, your client is a bad dude who runs with the Aryan Nation. I try to stay away from him. But I’ve seen him patrolling their turf in his car.  So, to answer your question, a couple months ago, when your client got out of prison for the second time, he got himself a lime green car.

Q:         Okay, let’s break that down. You say that my client is in the Aryan nation?

A:         I can’t say that for sure. I just know he hangs out with white guys who have short haircuts.

Q:         My client’s car is lime green?

A:         Yeah, a couple months ago, after getting out of prison, he got the lime green car.

Q:         You say that my client got out of prison recently?

A:         Yes, for the second time.

Q:         My client’s car is lime green?

A:         Yes

Notice Lyin Lenny again answered my question on the car’s color with a multiple bullet point answer. So, I ask Lyin Lenny a Bullet Point Question about my client going to prison because I know Lyin Lenny wants to broadcast that my client went to prison twice. Once he answers that question, he’s satisfied his need to vilify my client. Therefore, when I ask him if my client’s car is lime green again, he’s willing to answer it with a single word, “Yes.”

There you have it, fellow trial attorneys. Taking better depositions results in better transcripts. A cleaner and more effective trial follows.

Ask better questions in deposition with the Bullet Point Method.

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