A Practical Guide to Depos and Cross

Experience is a great teacher—and for the past 37 years, I have been a student of trial lawyering. Here are some of the most valuable lessons I’ve learned about questioning witnesses.

Reprinted with permission of Trial® (December 2019) Copyright© 2019 American Association for Justice®, Formerly Association of Trial Lawyers of America (ATLA®) www.justice.org/publications

Get straight to the point. I was deposed once—and although I have taken more than 3,000 depositions, I was a little anxious as we began. Then the attorneys asked me where I grew up and where I went to school—this put me at ease. I vowed never to begin a deposition that way.

I now go straight to the key issue of the case in my first question. Here’s an example from when I questioned an employer about a construction worker injured in a fall.

Q: Isn’t it true that OSHA requires fall protection for any workers who are working more than six feet off the ground?

A: I don’t know what OSHA requires.

Q: Didn’t your contract—let me show it to you here at paragraph 18—require that you monitor the work to make sure it complied with OSHA standards?

A: Yes.

Q: How did you satisfy that contractual promise if you didn’t know what OSHA required?

A: That’s a good question.

Pin the witness down. One way to overcome a witness’s reluctance to give a specific response is to use what I refer to as the “ridiculousness technique.” By asking a seemingly ridiculous question, you can force the witness either to answer specifically or to give a preposterous response.

One case involved a worker who hit an overhead power line that was located too close to a house. The line was later removed, and its exact distance from the house was never measured. But the key issue in the case was the line’s distance from the house and whether it met the National Electrical Safety Code. As I questioned the electric utility’s witness about the distance, it was obvious he had been coached not to describe how far the line was from the house.

Q: Can you estimate how far the line was from the house?

A: I don’t know. I’d have to guess.

Q: It was touching the house, wasn’t it?

A: No.

Q: Was it at least an inch away?

A: Yes.

Q: Was it less than 93 million miles, the distance from the Earth to the sun?

A: Yes.

Q: Trying as hard as you can and being as honest as you can be, can you do any better at narrowing your estimate of between 1 inch and 93 million miles?

A: No.

In another case, a backhoe operator hit a stationary I-beam, which fell and severed my client’s leg. I used this line of questioning with the backhoe operator’s boss:

Q: Do you admit that your employee was negligent when he drove a backhoe into a stationary I-beam, knocking it over and ripping off my client’s leg?

A: I think he did what anybody else would’ve done.

Q: Are you qualified to drive a backhoe?

A: Yes.

Q: So if you were operating the backhoe that day, you would have driven the backhoe into a stationary I-beam, knocking it over and ripping off my client’s leg?

A: I think so.

Q: And do you think you would’ve been doing a good job that day if you operated the backhoe and ran it into a stationary I-beam, knocking it over and ripping off my client’s leg?

A: I would think so.

Ask the question you don’t know the answer to. We’ve all been taught never to ask a question when we don’t know how the witness will answer. I tried a case in Philadelphia against the Salvation Army involving a building collapse that killed seven people and injured 12. I cross-examined a major who was an ordained minister about emails that he received warning of the danger of a collapse. As I questioned him, he looked at me and said “Mr. Mongeluzzi, this was a terrible tragedy, and I pray for the victims every night.” I walked up to him and quietly asked a question that I didn’t know how he would answer:

Q: What are their names?

A: I read them and must have forgotten them. I pray for them generally.

The 10 to 15 seconds of silence before he answered were deafening. In closing, I asked the jurors to render a verdict so that the defendant and this witness would never forget the victims’ names—and they did.

Robert J. Mongeluzzi is a founder of Saltz Mongeluzzi & Bendesky in Philadelphia and can be reached at rmongeluzzi@smbb.com.

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