When opposing counsel asks a contention question at deposition, lawyers must answer appropriately or risk causing damage to a client’s case. In his Daily Journal article “Handling Contention Questions in a Deposition,” Richard Morton outlines how to identify common contention traps and what actions to take.
“Contention questions can come in varying shapes and sizes. The classic ‘state all facts’ and ‘state the identity of each witness’ are the easiest to recognize by counsel for the deponent,” said Mr. Morton. “Other danger signs of questions that are of the contention variety are if the interrogator prefaces his question with why, do you believe, what do you think, and the like.”
When this happens, attorneys should object on the grounds that the contention question should be asked by way of interrogation rather than deposition. Sorting out facts and knowing legal consequences is a task for the lawyer, not the deponent.
Instructing your client to refrain from answering contention questions can decrease your client’s risk of potential impeachment and limiting evidence. It’s important to know how to handle contention questions in order to better protect clients at deposition.