If I am deposing a hostile witness or opposing party, I often start with an innocuous line of questioning I call “orange juice and toast.” The line of questioning goes like this:
Q. When I ask you questions, I’m going to be looking for what I perceive to be not just accurate answers but complete answers. What I mean by complete answers is answers that answer the question fully. For example, if I ask you a question “what did you have for breakfast today?,” you don’t have to tell me what you had for lunch, just what you had for breakfast. You understand that?
Q. And if you had orange juice and toast for breakfast, you would need to answer “orange juice and toast” for your answer to be accurate. Do you understand that?
Q. And if you had orange juice and toast for breakfast but you answered that you had “orange juice for breakfast” your answer would be incomplete. Do you understand that?
Q. And if you had orange juice and toast for breakfast but you answered that you had “orange juice for breakfast” your answer would be inaccurate. Do you understand that?
The purpose of this innocuous line of questioning is that family law testimony–especially testimony from the parties–involves lots of lists: list every reason you should get custody; list every reason your marriage broke up; list every reason your husband should pay you alimony. In depositions, when I ask list questions, I follow up with “anything else” until the answer is “nothing else.” Then I begin preparing my responses to these lists.
Often, at trial, when the opposing party’s own lawyer asks these list questions, new things will be added to the list: new reasons to receive alimony; new reasons they should get custody, etc. Without having the full list provided in the deposition, it’s frequently difficult to develop a complete counter-response to this new rationale. The opposing party will concoct some excuse for failure to include this important element in the list he or she provided at deposition. Sometimes the best you can do is whip out “orange juice and toast”:
Q. Remember at your deposition when I asked you about the need to answer questions not just accurately but completely?
Q. Remember that you agreed that a question in which you provided only a partial response was not an accurate response?
Q. Remember the response you gave me to the question of the reasons you should receive alimony? [be awarded custody?] [your marriage broke up?]
Q. You gave me these reasons [list reasons]?
Q. But not this reason [list the new rationale]?
Q. Despite my asking you if there was any other reason?
Q. And despite your answering no?
Q. So you gave me the orange juice but not the toast?