Anecdotally, I have seen it in a few recent cases: The deposition witness isn’t asked an open-ended question and isn’t given a “Yes or No” either. Instead, they are given a range of options, like you would see in an attitude survey or a school examination. For example, an employer was asked if they “Strongly agree,” “Somewhat agree,” “Somewhat disagree,” or “Strongly disagree” with a principal they were offered on how to handle an employment issue; or a transportation executive was asked to give themselves a grade, “A, B, C, D, or F” on how the company handled an accident. In both cases, the witness was not prepared for it, and the multiple-choice question turned out to be a winner for the party asking the question, yielding a clear and recorded endorsement of the adversary’s theme in the first case, and an awkward situation of the company giving themselves an “A” for a tragedy in the second.
Of course, these questions are designed to create a “damned if you do, damned if you don’t” situation for the witness – giving yourself an “A” conveys arrogance, but giving yourself anything else admits deficiency. Responding that you “disagree” or only “somewhat” agree with a common-sense-sounding principle could also be used by the other side. Answering a question like that well requires some preparation and thought. I am not sure whether the fixed-choice question is a new idea in depositions or whether it’s an older idea that simply isn’t seen that often. But it does seem to be happening, so it might be time to include a discussion of questions like this in the typical preparation sessions for witnesses before their deposition.
How you answer will depend on the situation, the witness, and of course, the specific question. But, in general, I see three strategies for responding to a multiple choice question in deposition.
Resist the Reductionism
A multiple-choice question works only because it simplifies. It takes what would otherwise be a spectrum of response to an open-ended question and boxes it into a few neat categories. So one way to answer a question like that in the deposition is to respectfully refuse to play that game:
Q: Would you characterize your company’s response as very effective, somewhat effective, somewhat ineffective, or very ineffective?
A: The situation is really more complex than that, and I am reluctant to reduce my answer to any one of those categories. In looking at the company’s response to the accident, there are some aspects of it that were positive and some aspects that could have been better. I am happy to talk about any of those aspects, but it would be misleading to replace that discussion with just a single category.
Take the Incomplete
A second way that the question might be unfair is that it might assume the completion of something that is currently in process. For example, if you are still looking at the situation, then a final verdict on it might be premature.
Q: How would you grade your company’s response, A through F?
A: Well, we are still looking at that. From the day this accident occurred, we have been conducting a thorough analysis of the causes and the responses, and that is ongoing as we speak. You might even say that this litigation is part of that assessment, since we are keenly interested in what a jury at some point might say. So I am happy to discuss any aspect of this investigation, but it is too early to award a final grade.
The last broad option for answering a multiple choice in deposition is to consider the possibility that you may not want to resist the question, but instead want to just pick an option and own it. While it is likely that your adversary is only asking the question because they feel it puts the witness in a dilemma, they might be wrong.
Q: “A company should put safety over profits.” Do you “Strongly agree,” “Somewhat agree,” “Somewhat disagree,” or “Strongly disagree”?
A: That is an easy one: I strongly agree. And that isn’t just an idea I am agreeing to here today, it is a bedrock principle to this company, because nothing gets done without safety. Putting safety before profits unfortunately doesn’t mean that all accidents can be avoided, but it does mean that no accidents will happen due to a profit motive, and this one didn’t.
Of course, it is only the savvy and well-prepared witness who will be able to give answers like that on the fly. More often when confronted with the unexpected question, witnesses will either evade or meekly agree. The better course is to prepare in advance and anticipate what you can. In the moment, take your time and give a thoughtful answer.