Multiple Choice Questions in Depositions—Agree, Maybe, Disagree?

Author Dr. Ken Broda-Bahm of Holland & Hart LLP (Denver), a senior litigation consultant, writes in a recent Lexology article¹ that witnesses, and their attorneys, should be prepared to receive questions in a deposition that require a multiple-choice response instead of the normal “yes" or "no.” For example, a transportation executive was asked to give the company a grade, “A," "B," "C," "D," or "F,” on how it handled an accident. In this case, the question, unexpected by the witness, resulted in a “winner” for the questioner and their client.

While I have not seen such multiple-choice questions in cases, the article points out that they seem to be gaining favor. The examples in the article are with witnesses that are fact witnesses. However, there is no doubt that such questions either have or will be used with expert witnesses also.

I discussed the situation with Drew Soshnick,² a prominent family law attorney in Indianapolis. Drew indicated that he has also seen multiple-choice questions in litigation, including questions to expert witnesses. The use of these questions seem to be in depositions and not (yet) in actual trial situations, where they might meet with objections, especially in front of a jury.

Regardless, business valuation professionals should be on alert for multiple-choice questions in their litigations. Since much of our process requires a series of assumptions and professional judgments, such questions could put the business valuation professional in a bind. Consider alerting your attorney in advance to the possibility of multiple-choice questions and discuss the approach that will be taken if they occur. Would (should?) the attorney object to the question? Would the attorney instruct you not to answer the question(s)? Or would the attorney just allow you to go ahead and answer the question and deal with the result later?

[1] Prepare for Multiple Choice Questions in Deposition;  Dr. Ken Broda-Bahm, Holland & Hart, LLP; www.Lexology.com; June 2, 2022.

[2] Faegre Drinker Biddle & Reath LLP, 300 N. Meridian Street, Suite 2500, Indianapolis, Indiana 46204, USA.