A Pound of Cure - July 2008 ("The Key to a Good Deposition: Ask the Ultimate Question")

A Pound of Cure is a quarterly newsletter addressing common issues in commercial litigation. It explores issues of interest to litigators, in-house counsel and business people with exposure to litigation in practical and non-technical terms.

This edition, entitled "The Key to a Good Deposition: Ask the Ultimate Question," makes the case for asking the so-called ultimate questions during depositions. Does the witness believe in his principal's case? Are there factors that call for a result different from the one sought in the pleadings? Who breached the contract and what is a fair outcome? Relying on the rule that a lawyer should never ask the ultimate question when prior answers lead to the desired conclusion, and the corollary that an attorney should never ask a question to which he or she does not know the answer, many litigators forget that these are rules of trial practice and that depositions are different. Asking the ultimate questions and exploring uncharted territory in depositions can open up useful avenues for discovery and can sometimes elicit surprisingly good admissions.