Questions to Ask in a Deposition
For a new attorney, a paralegal, a law student or a self-represented party getting ready to take the deposition of a witness or the other side before trial in a civil case. The list runs in the order a deposition usually does: ground rules, background, preparation and documents, the events (ending with the questions that pin down where the witness's knowledge stops), damages, and the closing catch-alls. Each note says what a useful or a worrying answer sounds like and what to do with it; deposition rules differ from court to court, so check yours, and none of this is legal advice.
The questions
Each question, and why to ask it
Ground Rules
Have you ever had your deposition taken before?
Why ask it
A yes leads to how many times, in what kind of case, and whether as a party or as a witness, which tells you how practiced the answers are going to be. Give the full ground rules either way: they are for the transcript as much as for the witness.
Do you understand that you are under oath today, just as you would be in a courtroom?
Why ask it
The oath was given a minute ago, and this puts the witness's own understanding of it on the page, which is what you point to if the account changes at trial. If the witness nods or makes a joke of it, ask again until the answer is a word.
Will you answer out loud, in words, so the court reporter can take down everything you say?
Why ask it
Nods, shrugs and 'uh-huh' either vanish from a transcript or appear as something nobody can quote. When one slips through later, ask 'is that a yes?' on the spot, because the gap is much harder to fix once the witness has gone home.
If you do not understand a question, will you tell me so that I can rephrase it?
Why ask it
This is the agreement you lean on months later, when a witness says a question confused them. Follow it with 'so if you answer, I can take it that you understood?' and get a yes to that as well.
Is there any reason you cannot give complete and accurate testimony today, such as illness, medication or lack of sleep?
Why ask it
A no closes off the later explanation that the witness was unwell or foggy. A yes is not something to push past: ask what it is and how it affects them, then decide with the other side whether to go on or pick another day.
Can we agree to let each other finish before speaking, so the record has one voice at a time?
Why ask it
The reporter can only take down one person, and you will break this rule as often as the witness does, usually when you think you know the answer. Leave a beat of silence after each answer, which witnesses often fill with something you had not asked for.
If you need a break, will you ask for one once you have answered the question on the table?
Why ask it
Offering breaks costs nothing, and the transcript then shows an examiner who was fair about it. Whether a witness may talk with their lawyer while a question is pending, or during a break, depends on the rules where the case is filed, so read them before the day.
If your lawyer objects, do you understand that you still answer unless you are instructed not to?
Why ask it
In many courts an objection is simply noted for a judge to rule on later and the witness goes on to answer, while an instruction not to answer is allowed only on narrow grounds. Look up your court's rule on both, so that when one comes you can calmly say 'you may answer' or note the instruction and move on. Leave this one out when the witness has no lawyer in the room.
If you remember something later today that changes an earlier answer, will you tell me before we finish?
Why ask it
Memory often arrives at hour three for a question asked in hour one. This agreement gets the correction made in the room, where you can ask about it. Many courts also let a witness review the transcript and note changes afterward, so ask how that works in yours.
Background
Please state your full name for the record, including any other names you have gone by.
Why ask it
Get the spelling, since the reporter needs it and so will every records request you send afterward. A maiden name, a former married name or a nickname used at work is often the name on the medical charts, court files and emails you have not found yet.
Take me through your schooling and your jobs since high school.
Why ask it
Mostly routine, so move briskly and listen for the piece that touches the case: a nursing course in an injury claim, years of bookkeeping in a dispute over invoices. Get dates and the reason for leaving each job, and spend one question on any gap.
What do you actually do in your job from day to day?
Why ask it
For an employee or company witness, whose title will tell you little. Have them describe an ordinary week and what they can decide without asking anyone, then who they report to, because that name is often the next person you need to question. Follow every 'that was not my area' with 'whose was it?'
What is your relationship to each of the parties in this case?
Why ask it
For a witness who is not a party. Family ties, friendship, a job that depends on one side and money owed are all things a judge or jury will weigh, so take them down flatly with dates and without arguing. A witness who plays down an obvious tie has told you something as well.
Have you ever been a party to a lawsuit, or made an injury or insurance claim, before this one?
Why ask it
Earlier claims can turn up a prior injury to the same shoulder, an old dispute with the same company, or sworn testimony you can go and find. Get the court, the year and how it ended. Whether any of it can be used at trial is a separate matter for your court's rules.
Have you ever been convicted of a crime?
Why ask it
A standard background question, asked once and in the same flat voice as the one about schooling. Take down the offense, the year and the court, then move on. Whether a conviction can be mentioned at trial depends on what it was, how old it is and your court's rules.
Other than your lawyer, who have you talked to about this case or what happened?
Why ask it
Leaving the lawyer out avoids a fight over privilege and still gets you the list. Each name is a possible witness and each conversation may hold an earlier version of the story, so find out when it was, what was said and whether any of it was in writing. Some courts also protect what spouses say to each other, so check before you press on that one.
Prep and Documents
What did you do to prepare for today's deposition?
Why ask it
Ask what was done, not what was said: how many meetings, how long, who was in the room. That steers around conversations with a lawyer, which are usually protected, and still shows how rehearsed the account is. A third person at a preparation meeting is worth a follow-up, and what it means for privilege is a question for your court's rules.
What documents did you look at to get ready for today?
Why ask it
Expect an objection, because courts differ on whether papers a lawyer picked out for a witness have to be identified, and in some the answer turns on whether a document refreshed the witness's memory. Know your court's position before you ask. Where you do get a list, it tells you which pages the other side thinks matter most.
Did you bring any documents with you today?
Why ask it
If your notice or subpoena asked for documents, read its requests aloud one at a time and have the witness say what was brought for each and what was not. Have anything you are handed marked as an exhibit before you ask about it. Whether you can require documents from this witness at all, and how much notice that takes, is set by your court's rules.
Where did you look for documents about this, and is there anywhere you have not checked?
Why ask it
Walk through the places one at a time: phone, each email account, cloud storage, paper files, a work laptop, a spouse's computer. 'I gave everything to my lawyer' describes a handover, not a search. The places nobody checked become your next written request.
Did you write anything down or message anyone about this at the time, in notes, a journal, texts or posts?
Why ask it
A text sent the same evening is often the least rehearsed account that exists. Ask which apps and accounts, whether the messages are still there and who received them. Having a witness scroll through a phone at the table rarely goes well; note what exists and ask for it in writing afterward.
Have any documents, messages or photos about this been deleted, lost or thrown away?
Why ask it
Ask what went, when and why, and above all whether it was before or after the witness knew a dispute was coming. A phone replaced two years ago is ordinary. A cleared inbox the week after a demand letter is something to raise with a lawyer or the court, since what a party must keep, and from when, differs by court.
I am showing you a document marked as Exhibit 1. Have you seen it before today?
Why ask it
Say the exhibit number aloud every time and give the witness time to read: a transcript full of 'this one here' cannot be quoted. The next question is when they first saw it, because 'in my lawyer's office last week' is a very different witness from the person who wrote it.
Who wrote this document, and who was it sent to?
Why ask it
Author, date and recipients turn one page into a list of people who knew something on a known day. If the witness is unsure, ask how they recognize the handwriting or the email address and who could say for certain.
Did you read this document before you signed it?
Why ask it
Get the signature first, as its own question with its own yes, so the two answers cannot blur into one. 'I signed it but never read it' comes up often, and the follow-ups are how long they had it, whether anyone hurried them and whether they asked a single question about it before signing.
What did you mean when you wrote the sentence I just read?
Why ask it
Read the line into the record first, with the exhibit and page number, so the transcript makes sense without the paper beside it. Then let the author explain before you decide whether the line helps you. If the explanation sounds newly made, ask who they told at the time that this is what it meant.
Is this a complete copy, or are there pages, attachments or earlier drafts that are not here?
Why ask it
Emails lose attachments and contracts lose their schedules somewhere between the filing cabinet and the copier. A witness who knows the document can tell you what is missing in seconds, and drafts show what was changed and at whose request. Whatever is named goes on your list of things to request.
The Events
Take me through the day it happened from start to finish, and I will come back for the details.
Why ask it
At a deposition the long answer is what you came for, so ask wide and do not interrupt. Jot down each topic as it goes by, then return to them one at a time. What the witness chooses to linger on, and what gets a single sentence, is a map of where to dig.
And after that, what is the very next thing that happened?
Why ask it
The workhorse of the day: it keeps the witness in order and keeps your words out of their mouth. When the story jumps from the phone call to the following week, back up and ask what happened in between, because skipped stretches are where the unhelpful facts tend to sit.
Who else saw or heard any part of this, and how would I reach them?
Why ask it
Every name is a possible statement or another deposition. Take the full name, employer and town while the witness is under oath and cooperative. If a busy place somehow produced no witnesses, ask who was normally there at that hour.
Who said what in that conversation, in the order it was said?
Why ask it
'We discussed the price' is a summary, and summaries hide the dispute. Go speaker by speaker for the words, then collect the frame: the date, the place, in person or by phone, who else was listening, how long it lasted. Anything short of that is a conversation the witness can describe differently later.
How do you know that: did you see it yourself, did someone tell you, or are you assuming?
Why ask it
In discovery the secondhand parts are still worth having, since 'my manager told me' leads you to the manager. What you need is a label on every fact. For anything the witness was told, get who said it, when, and the words as nearly as they can give them.
When did you first learn there was a problem, and how did you find out?
Why ask it
The date somebody first knew can decide a great deal, from whether they acted in time to whether a deadline has run, and which of those applies depends on the claim and the court. Pin the answer to something outside memory if you can: an email, an invoice, a doctor's visit.
Once you knew, what did you do about it, and what did you decide not to do?
Why ask it
The second half is the one people skip. The options a person weighed and turned down show what they understood at the time, which is often the real issue. If the answer is 'nothing', ask why in a level voice and write down the reason without debating it.
Why did you do it that way?
Why ask it
The old advice for trial is never to ask an opposing witness why. A deposition is the place to break that rule: you hear the explanation now, with months to test it, instead of for the first time in front of a judge. Take the reason down and ask what supports it.
Can you give me your best estimate of the distance, the speed or the time?
Why ask it
Tell the witness the difference first: they can estimate the length of the table in front of them, but would only be guessing at the length of yours at home. If they stall, bracket it ('more than ten feet? less than fifty?') and say aloud what range they settled on. An outright guess is worth marking as one on the record.
What did you say to the other person right afterward, and what did they say to you?
Why ask it
Words spoken in the first minutes are often the most fought-over lines in a case, so get both sides of the exchange and who was close enough to hear. Apologies come up here, and how a court treats one varies, so find out before you build on it.
Have you given a written or recorded statement about this to anyone, such as an insurer, an employer or the police?
Why ask it
An earlier statement is the yardstick for today's testimony. Find out who took it, when, whether it was signed or recorded and who has a copy now, then ask for it. If the witness says today's version is the more accurate one, ask what changed in between.
What facts are you relying on for what you say in paragraph 12 of your complaint?
Why ask it
For the opposing party. Have the complaint or the answer marked as an exhibit and take its paragraphs one at a time, asking for the facts, the people and the documents behind each. Expect an objection that you are asking for a legal conclusion, and expect 'my lawyer wrote that'; the follow-up to both is 'what do you personally know that supports it?'
Have you now told me everything you remember about that meeting?
Why ask it
Ask it at the end of every topic before you move on. A yes is the line you read back if a new detail appears at trial. 'That is all I recall right now' is softer than it sounds, so follow it with what might help them recall more.
When you say you do not recall, do you mean it did not happen, or that you cannot say either way?
Why ask it
'I don't recall' can mean no, can mean a real blank, and can mean a witness who would prefer not to say. Make them choose. A true blank still helps you, because someone who remembers nothing about a conversation is poorly placed to contradict the person who does.
What would you look at, or who would you ask, to find the answer to that?
Why ask it
It turns 'I don't know' into a lead: a file, a database, a colleague down the hall. With a company's witness, the answer often names the record to request or the next person to question. Add each one to a running list for the end of the day.
You have given me three reasons. Are there any others?
Why ask it
Repeat the list in the witness's own words, ask for more, and keep going until the answer is no. It is tedious to do and it is what keeps a fourth reason from turning up at trial. Summarize fairly, though, since a slanted recap earns an objection and a correction that muddies the page.
So I have it right: the first time you told anyone at the company was your email of March 3, correct?
Why ask it
A sample of where a leading question earns its place in a discovery deposition. Open questions find the fact, and a short closed one like this locks it into a single sentence you can read aloud at trial or quote in a motion. One fact per question, built from words the witness already used, and stop at the yes.
Damages
What injuries or losses are you claiming in this case?
Why ask it
Get the whole list in the witness's own words and ask 'any others?' until it runs dry, then go back through them one by one with the complaint open beside you. An item pleaded but never mentioned, or mentioned but never pleaded, deserves a question each.
Which doctors, hospitals or therapists have you seen for this, and when did you last see each one?
Why ask it
The names are the records you will need, and how to get them (a signed release, a subpoena, something else) depends on your court. Listen for long gaps in treatment and for a provider who did not appear in the written answers. The date of the last visit says a lot about how things stand now.
Before this happened, had you ever had trouble with, or treatment for, the same part of your body?
Why ask it
Put it plainly, with no edge, and ask about accidents since as well. An old injury admitted today is a fact both sides can work with. A flat no that the medical records later contradict is a far bigger problem for the witness than the old injury would have been.
What can you no longer do that you did before, and what have you gone back to doing?
Why ask it
Push for particulars: lifting a toddler, a full shift on a ladder, driving for more than an hour. For each, ask when they last tried. The second half matters because photos, posts and coworkers will show what the witness has returned to, and you want their own account first.
How much work did you miss, and how do you work out what that cost you?
Why ask it
You are after dates, a rate of pay and someone who can confirm both. Pay stubs and tax returns usually settle it for an employee. With a self-employed witness, ask what the figure is based on and which records show the jobs turned away, since a round number offered without arithmetic will not survive long.
What has any doctor told you about whether this will get better, and what treatment is still ahead?
Why ask it
The witness's report is a lead, and the doctor's own notes and testimony are what will count. Listen for 'released from care', 'permanent' and any talk of future surgery. Ask who said it and at which visit so you can find it in the chart.
What total are you asking for, and how did you arrive at each part of it?
Why ask it
Go line by line: the figure, the paper behind it, the person who did the sum. If an accountant or the lawyer produced the number, ask what they were given to work from. Some kinds of loss have no arithmetic behind them at all, and whether a party has to put a figure on those varies by court.
What have you done to keep the loss down, such as looking for other work, making repairs or finding a replacement?
Why ask it
Many courts expect a person to take reasonable steps to limit their own losses, and how far that goes is a local question. Ask for dates, job applications, quotes and receipts. A witness with a folder of them is in good shape; 'I was waiting to see what happened with the case' is the answer to follow up.
Has an insurer, an employer or anyone else paid or reimbursed any part of these bills or losses?
Why ask it
Whether such payments reduce what can be recovered differs sharply from one court to the next, and you may draw an objection. It is still worth knowing who paid what, because those payers keep their own records and sometimes expect to be repaid out of the case.
Closing
Is there anything you think is important to this case that we have not covered today?
Why ask it
The classic catch-all: now and then it produces the fact you did not know enough to ask about. Far more often the answer is no, and that no is on the record if the witness arrives at trial with a new story. A lawyer may object that it is too broad; ask it anyway.
Looking back over the day, is there any answer you want to change, add to or clarify?
Why ask it
The other bookend to the promise made at the start. If the answer is yes, take the change and then ask what brought it to mind. If it is no, the witness has just confirmed a full day of answers in one word.
Was there any question today that you answered without understanding it?
Why ask it
A no here, paired with the agreement at the start to ask for a rephrase, makes 'I was confused' very hard to say later. If the witness names one, go back to it now and ask it again in simpler words, while everyone is still in the room.
Did you talk with anyone about your testimony during the breaks today?
Why ask it
Courts take different views of what a witness and their lawyer may discuss mid-deposition, and of whether you can ask about it, so know the local rule before you try. If the talk was with someone other than the lawyer, ask who and what was said. An answer that changed right after lunch is your reason for asking.
Do you expect to testify at trial about anything we did not go into today?
Why ask it
Aimed at a party or an expert, and often answered by their lawyer. Any subject that gets named, you ask about now. Whether a court will keep out testimony sprung later depends on its rules, but a clear 'no' on the transcript is worth having either way.
Which of the documents you mentioned today have not been handed over yet?
Why ask it
Keep a list all day of every 'I would have to check my records', then read it back and have the witness confirm each item exists and where it is kept. Ask for them on the record and follow up in writing within a few days. If documents are still owed, ask before you finish whether your court lets you hold the deposition open or come back.
Taking a deposition that holds up later
Practical guidance for the conversation itself
Before the day
Work out what you need from this witness
Write down the handful of facts this person can give you that nobody else can, and what you would have to prove or answer at trial. Those facts are the deposition. Everything else on the outline is there to reach them or to check them.
Outline topics, not a script
List the topics and the exhibits that go with each, and write out word for word only the few questions where the wording matters. A full script keeps your eyes on the page, and the best follow-up is nearly always sitting in the answer you just heard.
Read the rules that govern yours
How much notice is required, how long a deposition may run, who may attend, how objections work and whether it can be held by video all depend on the court and the kind of case. Read the rule itself. If you are representing yourself, ask the clerk or the court's self-help center where to find it.
Get the exhibits ready
Put the documents in the order you plan to use them, with a copy for the witness, one for the other side and one for you. Ask the court reporter beforehand how they want exhibits marked. For a remote deposition, find out how documents will be shown on screen and try it the day before.
Book the reporter and the room
A deposition generally needs someone authorized to swear the witness in and take down the testimony, and the side that calls it usually arranges that. Ask what the transcript will cost and how long it takes to arrive, since both tend to surprise people doing this for the first time.
Open questions first, leading ones last
Why this is not cross-examination
On cross-examination at trial the usual advice is to ask only what you already know and to hold the witness to yes and no. A discovery deposition runs the other way: you are there to learn everything this person will say while there is still time to check it. A bad answer today is information. The same answer heard for the first time at trial is a problem.
Work each topic like a funnel
Start wide ('tell me about the meeting'), narrow with who, what, when, where and how, and finish by closing the topic ('is that everything?'). Then move to the next topic and do it again. It feels repetitive in the room and reads well on the page.
When to lead
Switch to a short leading question once the open ones have found the fact and you want it in one clean sentence: a date, an admission, something the witness did not do. Keep each to a single fact. Whether and when leading is allowed can turn on who the witness is and on your court, so check before you rely on it.
Listen instead of reading ahead
The most common mistake is looking down at the next question while the witness is still answering this one. A trailing sentence, 'not really' and 'as far as I know' are all doors. Go through them before you return to the outline.
Leave the arguing for later
You will hear things you believe are untrue. Take them down in detail and with a straight face: the more exact a false account is, the easier it is to test against documents and other witnesses. Arguing only shows the witness where your case is going.
Making a clean record
One question, one fact
A yes-or-no question with 'and' in the middle gets an answer nobody can pin to either half. Ask short questions in plain words, and if you hear yourself stacking two together, withdraw the question and ask them separately. A few entries on this page pair a question with its natural follow-up to save space; in the room, ask the first, wait for the answer, then ask the second.
Say what the transcript cannot see
The page records words and nothing else. When a witness points, holds their hands apart or marks a diagram, describe it aloud ('you are showing about two feet between your hands') and have them agree. Call every document by its exhibit number and every person by name, never 'he' or 'that one'.
Fix a bad answer on the spot
If the answer did not meet the question, say so politely and ask again, or have the reporter read the question back. Turn 'uh-huh' into a yes, and 'I guess so' into either a yes or an explanation. You will not get a second chance at that sentence.
Handle objections without a fight
Let the objection be made, do not debate it, and where your rules allow, ask the witness to go ahead and answer. If it points to a real flaw, such as a confusing or two-part question, rephrase: that costs ten seconds and saves the answer. If the witness is told not to answer, note it clearly and move on, then find out afterward what your court lets you do about it.
Close it properly
Before you finish, run the closing questions, read back your list of documents still owed and say on the record what you are asking for. The rules on reviewing and signing the transcript, and on coming back for more time, differ from court to court, so settle those points with the reporter and the other side before everyone stands up.
Mistakes that cost you later
Performing instead of learning
A crushing question that makes the witness squirm has shown the other side your best point months early and given them time to prepare for it. Unless you have a clear reason to lock something in now, gather first.
Taking 'I don't recall' and moving on
It is the easiest answer to give and the easiest to accept. Each time, ask whether it means no or a blank, what would refresh their memory and who would know. Three follow-ups is the ordinary price of that phrase.
Asking what the lawyer said
Questions about conversations between a witness and their lawyer tend to draw an instruction not to answer and eat your time. Ask what the witness did, read and knows. The rules on privilege are detailed and local, so if you think a particular conversation is fair game, check before the day.
Skipping the dull parts
Ground rules and closers feel like ceremony, and tired examiners drop them at five o'clock. They are the reason a transcript can be held up against a changed story, so keep them even when the day has run long.
Running out of time on background
If your court limits the hours, an hour spent on schooling and old jobs comes out of the events. Decide in advance roughly how many minutes each part of the outline gets, and put the topics you cannot do without early enough to finish them. Nobody asks every question on a list like this one: mark the ones this witness is there for.