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Opposing attorney didn't ask right question in deposition

New Hartford, NY |

If the opposing attorney don't ask the right questions in the deposition, how does this information is suppose to be revealed?

For example: In a car accident case, the opposing attorney didn't ask the client being deposed "why they failed to stop in time before the accident"? -or- In a slip and fall, the opposing attorney didn't ask the client being deposed "why they didn't see what cause them to slip before it happened?".

Can the information regarding these questions not be used because the opposing counsel forgot to ask? How is this information suppose to be revealed if not mention during deposition? In a situation like this; what does the other lawyer do in order to reveal this piece of information? Or do this information has to wait until trial now to be revealed?

Attorney Answers 3


The issue of whether or not the "right questions" were asked is much too complex for anyone other than a trained, experienced litigation attorney, and even then trained experienced litigation attorneys might have different views on what to ask, or how to ask it.

Let me just give you a few basic concepts:

1. It is not the role of the person being deposed, or even of if his or her attorney, to "reveal" at the deposition the answers to questions which were not asked. It is your role to answer the questions which are asked.

2. If you feel frustrated, because there are things which were not brought out, which you feel are relevant to the case, you should discuss these with your attorney. He or she can always ask you those questions at the trial, if he or she agrees that your answers to those questions will be helpful to your case.

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One of the most common misconceptions for non-lawyers (or, for that matter, lawyers who don't have experience taking depositions) is that a deposition should be conducted like a trial, complete with "gotcha" moments and intense cross-examination to demonstrate that the witness is completely unreliable or unbelievable. Even experienced litigation attorneys, as the prior answer indicates, often disagree about the precise tactical considerations of which questions should be skipped and which ones asked, but another general rule is that a question fully appropriate at trial in front of a jury might be completely inappropriate for a deposition, and vice versa.

I'll assume that you are the client in this scenario and that the opposing attorney didn't ask you questions you were hoping to answer. If the opposing attorney later files a summary judgment motion and attaches the deposition transcript or an excerpt, you can attach an affidavit in opposition that includes the favorable information you weren't able to insert into your answers during the deposition. However, if the information you are providing in the affidavit could have been given in the deposition, or is inconsistent with what you said in the deposition, the affidavit may be disregarded by the court in deciding the motion. Another way the information could come out now is at trial. You will have the added advantage of presenting the favorable information for the first time at trial, and your adversaries will not have the benefit of having thought about that information for a long time beforehand (nor can they complain since the information could have been obtained during the deposition had the right questions been asked).

Keep in mind, however, that it is sometimes unhelpful for a deposition questioner to ask "why" the person didn't do something, because most people in that situation can come up with a self-serving, favorable answer. If the questioner heard something very helpful in the witness's answer, he or she might have thought it wiser to simply move along to another topic without giving the witness an opportunity to "clean up" the response.

It goes without saying that you should ask your own attorney for insights into this process and answers to these sorts of questions, assuming you are represented by counsel. Best of luck.

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I have seen this question at least a dozen times in one form or another here and on other sites. I have to assume that the same person keeps posting it because he/she has not found a suitable answer. I suggest you speak with a legal malpractice attorney.

I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 385-8015 or via email at The above answer is for informational purposes only and not meant as legal advice.

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