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Answer basic who, what, where, and when questions, how and when to estimate
SUMMARY
Although this article gives specific examples of questions that will be asked, and strategies to answer those questions, an important point to remember is that answering questions is not a threat. The client should not feel burdened or harassed about answering questions. Instead, this is an opportunity for the client to tell his or her side of the story. Answering questions is actually one of the few opportunities that the client has to materially impact the case.
As discussed previously, the facts are the heart of the case. If it is not clear, the facts come from the client, not the attorney. The client must be able to communicate the facts of the case clearly and concisely, without telling a long story in response to each question. Typical questions asked in litigation are what we used to refer to who, what, where, and when questions, meaning the questions started with those words. Unfortunately, memory is not reliable. It is normal for clients to not remember every date, every name, every detail. It is also normal not to want to make a mistake when being asked about your case
However, so many times, in fear of making a mistake, or not remembering a detail, the client responds complete ignorance, states they do not remember, or refuses to answer when those answers harm the case.
Instead, it is reasonable to expect that the client be able to estimate. Estimate is to provide information that approximates the information sought.
How tall is Ted Broomfield. Well, 5’11” is a specific answer, but taller than 5’8” and less than 6’2” may be sufficient.
This article previews the type of questions that you will be asked, and helps you estimate answers. In general, you will be asked questions that begin with who, what, when, and where. In general, it is best to actually respond to those questions, rather than start a long story.
DETAILS
The client needs to be able to answer basic questions to prove the claims or defenses. Answering, I don’t know, I don’t remember, I can’t speculate too many times may feel good in deposition or at trial, but if done too many times, it just means your claims or defenses do not have merit.
Instead, you are better off preparing for the questions, and being ready to provide meaningful answers.
Question blocks
The term question blocks refers to a set of several questions that cover a topic
Establishing if you have ever done something, if you ever saw anything, ever heard something
One of the foundational questions types that will be asked over, and over again is a question that begins with “Have you ever?”
Have you ever been to 123 Main Street, San Francisco, California?
Have you ever spoken with John Doe?
Have you ever seen a document titled Grant Deed of 123 Main Street, San Francisco, California?
These are not idle questions, they are called foundational questions. Usually, the opposing counsel knows that you have been to 123 Main Street. In fact, they know pretty much everything about 123 Main Street with respect to the lawsuit.
They ask the foundational question to start a question block about 123 Main Street.
Responding to have ever done something, if you ever saw anything, ever heard something
The only correct responses to “Have you ever?” are (1) Yes; (2) No; (3) I do not remember; or (4) I will follow my attorney’s instruction not to respond.
If you are a plaintiff seeking something from somebody else, you need to establish the facts supporting your claims. You need to be able to answer these types of questions.
If you are a defendant, you may not want to answer this question, but you need to weigh the consequences of avoiding the question.
You can always say that you do not remember. But, that may not help you.
How not remembering can hurt you.
Sample Deposition Transcript
Question: Have you ever spoken with John Doe
Answer: I do not remember.
Question: Are you sure that you do not remember if you've spoke with John Doe?
Answer: Sorry, I have no memory of ever speaking with John Doe.
Question: So, if you do not remember if you ever spoke with John Doe, then you would not remember a telephone conversation with John Doe on Janaury 1, 2025?
Answer: No.
Question: So, if you do not remember if you spoke with John Doe on a Janaury 1, 2025 telephone conversation you would not remember what you said during that conversation?
Answer: No.
Question: So, if you cannot remember what you said to to John Doe on a Janaury 1, 2025 telephone conversation, then you would not remember saying that the incident was your fault?
Answer: Well, I never said that the incident was my fault.
Question: But, if you cannot remember what you said to to John Doe on a Janaury 1, 2025 telephone conversation, then you would not have any facts to contradict John Doe's statement that you admitted fault in that conversation
Have you ever been to 123 Main Street, San Francisco, California?
Have you ever spoken with John Doe?
Have you ever seen a document titled Grant Deed of 123 Main Street, San Francisco, California?
These are not idle questions, they are called foundational questions. Usually, the opposing counsel knows that you have been to 123 Main Street. In fact, they know pretty much everything about 123 Main Street with respect to the lawsuit.
They ask the foundational question to start a question block about 123 Main Street.
Questions establishing the total, estimating how many times something has occurred
In many cases, repetition is at issue, meaning a fact that helps determine the outcome of the case. Such cases include landlord tenant, where repairs are at issue, construction defect cases, where failure to repair property are at issue, breach of contract, where number of times the breach victim gave the breaching party notice of breach and opportunity to cure are at issue, personal injury case, where rehabilitation visits are at issue, and so on.
How many times have you been at 123 Main Street, San Francisco, California?
How many times have you spoken with John Doe?
How many times have you have seen a document titled Grant Deed of 123 Main Street, San Francisco, California?
If the opposing party cannot get an answer, they may try the was is more than x times....
Could you say that you’ve been at 123 Main Street, San Francisco, California 3 times, 10 times, 20 times, between 20 and 40 times, more than 50 times?
However, it is a fine line, between not being able to remember, and lacking credibility in proving your case or defense in testimony.
Responses establishing total
It is rare for a person to know the exact number of times something happened. However, it is a mistake to evade the question.
Instead, a better answer could be to estimate the number, if you can.
Question: How many times have you been at 123 Main Street?
Answer: I cannot say exactly how many times that I have been to 123 Main Street, but I usually go once a week to check things out, and sometimes more and I bought the property two years ago, so likely more than 100 times.
Question: How many times have you spoke with John Doe?
Answer: I cannot say exactly how many times that I spoken to John Doe, but I took Mr. Doe’s application, and I spoke with him a couple of times. Since, then I have seen Mr. Doe occasionally when I visited the property and some of those times I spoke with John Doe.
Bracketing, talking about the first time or the most recent time
Another technique is to ask, when the first time something happened, or when was the most recent time something happened.
When was the most recent time that you were at 123 Main Street, San Francisco, California? [When was the first time.....]
When was the most recent time that you spoke with John Doe?
When was the most recent time that you saw a document titled Grant Deed of 123 Main Street, San Francisco, California? [When was the first time.....]
The opposing counsel can then ask, when was the first time you did those things.
Answering Bracketing, talking about the first time or the most recent time
Another technique is to ask, when the first time something happened, or when was the most recent time something happened.
Question: When was the first time that you visited 123 Main Street?
Answer: I cannot say exactly the first time that I visited 123 Main Street, but viewed the property a couple of times before buying it, and I bought it around June of 2023, so sometime in June 2023 or maybe May 2023, or close to then.
Question: When was the first time that you spoke with John Doe?
Answer: I cannot say exactly when the first time that I spoke to John Doe, but I bought 123 Main Street around June of 2023, and I did not speak to John Doe until months after then.
Identifying persons with knowledge
The next category of questions in a block may involve establishing who else was at a place when you were there.
During that most recent time that you were at 123 Main Street, San Francisco, California, did you see any one else there? Who else did you see?
When you most recently, spoke with John Doe, did you hear anyone else?
Answering questions to identify persons
A very common set of questions is to ask questions meant to identify people.
Question: Who else did you see that first time that you visited 123 Main Street?
Answer: Well, I don’t remember everyone’s names. The first time that I visited 123 Main Street was to look at it before buying it. The seller was there, but I don’t remember the seller’s name. My property manager was there, her name is Jane Smith. There may have been some tenants, but I can’t recall any of them specifically.
Question: Who else did you hear that first time that you spoke with John Doe?
Answer: Well, my property manager, Jane Smith, was on the call. Also, I heard a female voice in the background from Mr. Doe’s line, neither Mr. Doe or that person ever identified who it was.
The meat, what happened, what happened next, what was said, what did so & so do?
Once the foundational questions are asked, then the party will get into the meat of the questions.
What happened the last time that you were at 123 Main Street, San Francisco, California?
What was the conversation about the last time you spoke with John Doe?
There will be numerous questions, like did he say, did you say, what was said next, etc.
You need to be able to answer the questions with specificity
CONCLUSION
It is the client’s case. The client needs to know and be able to answer questions about the facts.
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