Examining the Witness By Ralph J. Monaco, Esq. September 2004

  1. Where to Begin-Preparation

"Trials are 90% preparation and 10% presentation." (Internal quotation marks omitted). Harding v. Jacoby, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 353674 (July 22, 1993)(O'Neill, J.) . So are depositions.

You should begin preparing for a deposition by formulating the general information that you want to develop from the witness. Know where you are going. What do you need to prove to win this case? The deposition is a tool that enables you to begin to develop your final argument at trial. You should seeks to acquire facts that buttress your theory of the case, and obtain ammunition to cross-examine adverse witnesses at trial.

  1. What Type of Information May I Obtain at a Deposition

Discovery deposition questions must be "reasonably calculated" to lead to the discovery of admissible evidence. See P.B. Section 13-2. The rules of practice prohibit questions that are asked in bad faith, or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party." P.B. Section 13-30 (b). This does not prohibit irrelevant questions, provided they do not run afoul of this rule.

While it might sound over simplistic, there are three main objectives of a deposition:

  1. Find out facts, favorable and unfavorable
  2. Acquire information to cross examine the witness at trial
  3. Size up the witness-will the jury like the witness

However, as an ancillary matter, you may also seek to: preserve testimony of a witness that may not be able to testify at trial due to travel, age, or infirmity; weaken or eliminate the deponent as a witness; or to support a motion.

  1. Preparing Your Questions (for the fact witness)

Prepare an outline, not a narrative of all of your questions. Your outline should list general categories and be a guide for you, not a verbatim script of your "lines".

Depositions of witnesses vary depending on the type of witness and type of case. However, the following are examples of questions that you should ask of most fact witnesses:

  1. Personal Background (name, address, date of birth, marital status, children, Social Security number if you are concerned about finding the person later)
  2. Educational Background (with lay witnesses begin with high school and include trade schools and military service)
    • If a person has been in the military, ask if their discharge was honorable.
  3. What did they do to prepare for the deposition
    • What documents did they review?
    • Who did they speak to? Note: The attorney-client privilege prevents you from inquiring about the substance of their conversation with their attorney. However, you are permitted to ask when they spoke. Conversations between employees outside the presence of counsel are discoverable. If the witness is not a party, you should ask about the substance of the conversation with counsel.
    • Witnesses experience is giving depositions.
  4. Other statements, reports or writings about the case
  5. Questions about relevant documents
    • Recorded statements of the witness
    • Discovery answers
    • Documents the witness authored
    • Documents the witness received
    • Don't forget to mark all documents to which you refer in the deposition
    • If the witness referenced documents not produced, and your written discovery requested such documents, state on the record that you are requesting these documents, and that you reserve your right to re-call the witness for the purpose of discussing these documents.
  6. Questions about the facts and circumstances of the case
    • Ask the tough questions. You want to elicit adverse facts in a deposition. That is one of the purposes of the deposition. For example:
    1. How would you describe the impact?
    2. Did my client verbally agree to contract with your company?
    3. Did the supervisor ever say inappropriate things in your presence?
    4. How did my client appear after the event?
    5. What did my client say after the event?
    • If the witness lacks memory or has vivid memory, you should explore this. For example, why does the witness have such vivid memory? Or if the witness' memory is poor, you may need to lead them to probe their memory. For example, if a witness says I don't remember anything about the accident, ask: Was it day or night? Was it on Main Street? Was one of the vehicles a pick up truck?
    • If the witness is someone who investigated an incident, such as the store manager, find out how many incidents the witness has investigated since the accident.
    • If a witness's testimony is different from prior statements or reports, have the witness concede that their memory was better shortly after the event.
  7. Claims and Defenses
    • Do you dispute the allegations in the Complaint?
    • Do you believe someone else caused or contributed to this accident?
    • Note: If the defendant's counsel filed a weak and possibly frivolous special defense or affirmative defense, you may want to consider using it for trial to surprise the defendant. For example:
      Q. You were drunk and slammed into the rear of my client who was stopped for a red light?
      A. Yes.
      Q. Yet, you filed a document with the court stating that my client is more at fault than you.
      A. I don't know what you mean.
      Q. This special defense that your lawyer filed with the court alleges that my client is more at fault than you.
      A. I just met my lawyer today.
      Q. I take it you don't agree with this legal document that your own lawyer filed with the court.
  8. Criminal Background/ License Suspension
    Ask all witnesses whether they have ever been convicted of a felony. In motor vehicle cases, find out if their driver's license has even been suspended or revoked. When deposing people with professional licenses, inquire whether they have ever lost their license.
  1. Preparing Your Questions (for the expert witness)

Preparing for an expert deposition begins with the Notice of Deposition. Your notice should attach a Schedule A that requests a copy of the expert's file and any documents reviewed by the expert or to be relied upon by the expert.

It is a good idea to request that these documents be produced to you ahead of the deposition. This will shorten the deposition, allow you to thoroughly review the document and properly prepare for the depositions. If opposing counsel does not cooperate, file a Motion to Compel with the court.

Typically, you will want to ask about the topics noted for fact witnesses (above) including educational background, employment background, documents reviewed, documents in the expert's file, and their understanding of the facts and circumstances of the case. In addition, you should also inquire about:

  1. Prior dealings/cases with the opposing counsel and their client
  2. Personal contacts with witnesses or parties (e.g. in a medical malpractice case, the defense expert may have a prior relationship with the defendant)
  3. Studies, books, treatises, reports they have reviewed in preparing their opinions (note: Ask generally about these, before asking whether they believe they are "authoritative".)
  4. Assumptions made in formulating opinions (e.g. facts provided by counsel)
  5. Review Expert Witness Disclosure, expert's report, or Federal Rule 26(a) disclosure
  6. Ask: as a result of reviewing this case, what opinions have you formulated?
  7. Ask follow up questions about the opinions, including but not limited to defining words (e.g. methodology, how applied, recognized in the field).
  8. Has the expert personally inspected the relevant evidence (e.g. the product, scene of accident, tax records)?
  9. When did the expert inspect the relevant evidence? Did the evidence change condition?
  10. Near the end of the deposition, ask the expert, do you intend to testify to any other opinions than the opinions you have explained today?
  11. Do you intend to perform any more work on this case?
  12. Ask about fees, and how calculated, including how much preparation time.
  13. Ask how much the expert has billed opposing counsel and whether billed. Review bills. What rate did the expert charge opposing counsel?
  14. How much of expert's professional time is devoted to serving as expert witness? How much of expert's income for the last five years was derived from serving as expert? What percentage of time and revenue from serving as plaintiff/defendant expert?
  15. Has the expert ever been employed or served on a board or commission of defendant's insurance company? See Vasquez v. Rocco, 267 Conn. 59, 836 A.2d 1158 (2003)(holding that it is permissible for counsel to cross-examine defense expert regarding service on insurance company's business development committee and board of directors)
  1. Listen to the Answers

Remember to listen to the answer. Do not be so preoccupied with formulating your next question that you ignore the answer. Some of your best questions will be the result of following up on answers.

  1. Enjoy Narrative Answers

With few exceptions, let a motor mouth be a motor mouth! The exception to this rule is if the witness is a close relative of your client or similarly situated person. You may not want this person to volunteer information. However, generally, you want the witness to ramble on-it's better to hear damaging information in your conference room than in front of the jury in the courtroom.

  1. Be Civil

Civility is mandatory.

  1. Save the Showmanship for the Jury

Discovery depositions are not the time for theatrics. Save your best stuff for the jury. The trier of the facts is not watching. You are not there to keep the attention of the court reporter, opposing counsel, or others in the room. You are there to find out facts and develop your case.


RALPH J. MONACO is a partner at Conway, Londregan, Sheehan & Monaco, P.C. in New London (www.conwaylondregan.com), where he has practiced in civil and commercial litigation since 1993. Conway, Londregan, Sheehan & Monaco, P.C. is a general practice firm, and Attorney Monaco heads their litigation practice. He graduated from Fordham University, B.A (cum laude, 1989) and Quinnipiac University School of Law, J.D. (with honors, 1993). He is a Board Certified Trial Lawyer, having been certified by the National Board of Trial Advocacy in 2001.

The Connecticut Law Tribune named him the New Leader of the Law for New London County in 2002. He is a member of the Connecticut and New Jersey Bar, the U.S. District Court for the District of Connecticut, the U.S. District Court for the District of New Jersey, and the U.S. Court of Appeals for the Second Circuit.

He regularly handles complex litigation matters and has tried numerous jury cases in state and federal court. He has successfully argued appellate cases at the Connecticut Appellate Court, Connecticut Supreme Court, and the Second Circuit Court of Appeals.

Attorney Monaco serves on the House of Delegates of the Connecticut Bar Association (CBA) and the Board of Governors of the Connecticut Trial Lawyers Association. He is a past Assistant Secretary-Treasurer of the CBA and past chair of the CBA Young Lawyers Section. In addition, he is a member of the CBA Litigation Section Executive Committee, the CBA Federal Judiciary Committee, and the CBA Committee on Liaison with the State Courts.

Attorney Monaco can be reached at 860-447-3171 or rmonaco.C-L@snet.net