THE GERRY SPENCE DEPOSITION APPROACH
Gerry Spence advised an approach to taking the deposition of a fact witness (non-expert) that emphasized conversational inquiry rather than confrontational questioning. His approach was to have a demeanor that was calm and non-threatening with the witness. In practice, a Spence deposition was much more like a conversation than an interrogation. That relaxed demeanor influenced the witness to say far more than they planned. He argued “The deposition is not the place to win the case.”
He recommended that lawyers have a demeanor of being patient and respectful. He believed that when the witness felt attacked, they shut down and are defensive. But a calm demeanor encourages free talk. He suggested the approach should be one of curiosity: “Help me understand what happened. “ Even when the witness is hostile or dishonest, he recommended treating the witness with respect. His recommendation was that the lawyer should listen a lot more than they talk. The lawyer should be thoughtful, attentive, and unhurried. He suggested lawyers avoid appearing to be confrontational. Instead of arguing, ask neutral questions: “Help me understand something.” He suggested control can be exercised by the lawyer asking short questions and using silence after an answer to encourage additional information. The ultimate goal was to create a setting where the witness feels safe in talking.
Spence believed it was important to discover the witness’s motivation. Juries care about why people act. Therefore the should be like: “What concerned you at that moment?” “What were you worried might happen?” “What did you think your responsibility was?” These answers reveal values, fears, and biases.
Spence also advised that lawyers at deposition avoid the “Lawyer Ego Problem.” He pointed out that lawyers often try to show how smart they are or argue with witnesses and perform for the record. He cautioned that “Your job is to understand the witness — not defeat them.”The more comfortable the witness feels, the more damaging information they give.
In general, the approach was in two stages. The first was letting the witness tell everything through a completely open and conversational approach. It involved not interrupting, not challenging, and asking details. These questions encourage rapport and are intended as a conversational opening with variations of:
- “Tell me about your job.”
- “What does a typical day look like for you?”
- “How long have you done that work?”
- “What training did you receive?”
- “Who supervises you?”
- “What responsibilities do you have regarding safety?”
- “What were your responsibilities that day?”
The second stage was having the witness give a factual accounting and then have the witness commit to key details. This approach used questions like:
- “Please tell me everything that happened.”
- What happened next?
- What were you thinking at that moment?”
- Why did you do that?”
- “What did you understand about that?”
- How did you feel about that?”
- Is there anything else about that event that we should know?”
Spence questions encouraged disclosure, assured full disclosure, and committed the witness to the testimony. His primary method of accomplishing this was with questions like these:
1. “Tell me everything you remember about that day.” This invites a narrative instead of fragments. It asks the witness to tell the story in their own words before the lawyer shapes it.
2. “Where would you like to start?” This small shift gives the witness psychological control, making them more comfortable and more likely to talk. Witnesses often reveal unexpected facts when choosing their own starting point.
3. “What happened next?” This is one of Spence’s favorite questions. It: keeps the witness talking, avoids interruption & reveals chronological details
4. “Help me understand what you mean by that.” A powerful clarification tool. Instead of accusing or confronting, it invites explanation, which often produces admissions.
5. “What did you notice?” Rather than asking what they saw, this broader question allows witnesses to reveal: sounds, smells, warnings & conditions
6. “What concerned you at that moment?” Spence believes juries care deeply about human motivations. This question uncovers: fear, awareness of danger & knowledge of risk.
7. “What was your responsibility there?” It helps establish: duty, role & expected conduct without appearing confrontational.
8. “What did you do after that?” Another continuation question that builds the timeline and keeps witnesses talking. It often exposes actions that weren’t mentioned earlier.
9. “Is there anything else you remember about that?” This is one of the most important Spence questions. It serves two purposes: Encourages additional testimony & Locks the witness in so later changes are harder.
CONCLUSION
You would need to revise these questions to fit your own style the case you are working on. However, the basic philosophy behind this is solidly designed to improve the quality of your discovery depositions of factual witnesses.