MODERN NAMES, ANCIENT MOVES:

What the Classics Teach Us About Deposition Questioning

an Essay by Glenn C Nunes

What Socrates, Aristotle, and Quintilian knew about questioning a witness

In 399 BCE, Socrates stood trial in Athens for impiety and for corrupting the young. Athenian procedure let a litigant put questions to his opponent, and partway through his defense Socrates called his accuser, Meletus, to answer.

His first question could only be answered yes: surely Meletus thought it mattered a great deal that the young be as good as possible? Meletus agreed. Then who makes them better? After a silence, Meletus said the laws. Socrates pressed: which people? The jurors, said Meletus. All of them? All of them. And the spectators, the members of the Council, the Assembly? All of them, too. So every Athenian improves the young, and Socrates alone corrupts them? Meletus said that was exactly his position. The absurdity was now on the record, in his own words.

Lawyers who take depositions will recognize what happened. Socrates opened with a question that revealed nothing. He let the witness commit to a principle. He closed every exit, one group at a time, before the conclusion arrived. Francis Wellman, whose The Art of Cross-Examination (1903) taught generations of American trial lawyers, called Plato's account of this exchange a masterpiece of cross-questioning.

Socrates was convicted anyway. The exchange was masterful without being dispositive. An examination produces pieces of persuasion: an admission, a contradiction, a commitment. It is not persuasion in its entirety, and what a jury does with those pieces depends on everything else it hears and believes.

Today we teach many of the same structures under modern names: the funnel, looping, boxing in, the Miller Mousetrap. The names are valuable. Naming a structure makes it visible and teachable, and the teachers who developed these methods deserve the credit for them. But the structures did not begin with the names, and nothing suggests the modern teachers borrowed from the ancients. The better explanation is that each generation rediscovers the same moves because each confronts the same person in the witness chair: someone who answers one question at a time, tries to guess where the questions are going, grows guarded when he sees danger, and finds it hard to retreat from what he has already said.

The ancient writers saw that person clearly. Read together, they describe an architecture that still underlies good examination. The examiner controls the sequence. The witness supplies the building materials.

Learn the story first

Quintilian, a Roman advocate and teacher writing around 95 CE, complained that the schools of rhetoric taught nothing about examining witnesses; skill came from talent or practice. For a model, he pointed to the dialogues of Plato, where each answer seems harmless to the person giving it and the questioner still reaches his conclusion.

His advice for a witness whose intentions are unknown is the first principle of discovery: advance gradually, sound the witness out, and lead him step by step. Every action, he adds, raises the same questions: why, where, when, how, and by what means.

Modern training calls this the funnel, but the shape matters less than the job. When the examiner does not yet know what happened, open questions reveal what no outline anticipated, and controlling the witness too early can prevent the very discovery the deposition exists for. Once the important facts surface, the job changes, and the examiner begins asking for definitions, boundaries, and exclusions.

Suppose a merchant shipped olive oil in jars that leaked, and insists the shipment was sound when it left his warehouse. Having learned of two inspections, the examiner asks whether there were any others. If the witness says no, the list is his, and a third inspection that surfaces later will have to be explained.

What a question gives away

Once the examiner knows the story, the examination changes character. Discovery asks what the witness's position is. Commitment asks which propositions the witness will stand behind. Here one fact about questions becomes decisive: a question does not only take information from the witness. It also gives information to him.

Every question tells the witness what the examiner thinks matters. A sequence of questions can reveal the theory of the case, the contradiction under construction, the document waiting in the file. Ask the ultimate question first and the witness learns exactly what he must defend. Establish the premises first and each answer is given before its significance is apparent.

Aristotle saw this. In Book VIII of the Topics, his manual for dialectical debate, he advises the questioner to secure the needed premises through preliminary arguments, to ask for them out of order so the conclusion is not obvious, and to leave it unclear which answer he wants. He is candid that concealment serves the contest rather than the search for truth, and that the questioner uses it because the exchange is against an opponent.

That candor names a tension the deposition has never escaped. A deposition genuinely investigates what happened. It also creates testimony, forecloses explanations, and preserves admissions for later use against the witness. The same questions serve both ends at once.

Use the witness's words

Socrates' examination of Meletus did not end with the young. Meletus had also charged him with impiety, and the indictment itself accused Socrates of believing in new divine things. Socrates took that language and worked with it. If he believed in divine things, he must believe in divine beings; and divine beings, Meletus agreed, were gods or the children of gods. The charge's own words had become the premise of its refutation. Believing in the offspring of gods but not in gods, Socrates observed, would be like believing in mules but not in horses and asses.

Modern cross-examination made this a deliberate technique. Larry Pozner and Roger Dodd call it looping: taking a word, often the witness's own, and building it into successive questions until it becomes the vocabulary of the examination. Classical rhetoric knew the force of repetition; Quintilian discusses anadiplosis, in which the word that ends one clause begins the next. Looping does something rhetoric did not need to do. It moves the word from the witness's answer into the examiner's questions, so each later question carries the witness's own endorsement.

One step should come first. If the merchant calls the shipment "sound," ask what he means by sound. A loop built on an undefined word leaves room to reinterpret it later; sound might turn out to mean only that no jar was visibly cracked. Once he has defined it, the word is his twice over, and the questions can carry it forward: the sound shipment included the jars inspected the day before; the sound shipment left the next morning.

Quintilian supplies the limit. When the art shows too plainly, he warned, the listener concludes the truth is not in the speaker. A word repeated too often stops sounding like the witness's and starts sounding like the lawyer's.

Let the witness close the exits

Quintilian's most practical advice concerns the reluctant witness, and in it he describes the problem that boxing in solves. Questions that seem irrelevant, he says, about times, places, persons, and what came before and after, will draw replies the witness thinks harmless. Taken together, those replies force the admission he did not want to make, or contradict his earlier evidence. Begin with innocent questions, he advises, and compare earlier answers with later ones.

Modern trainers make the method deliberate: identify every route by which the witness could avoid the admission you need, close each one, and only then ask the question that matters. For the merchant, the routes are predictable. Could a problem with the seals reach him from an inspector, a warehouse worker, a written note, a word in passing? Any other way? Did he receive any such report, from anyone, in any form?

The examiner does not eliminate those possibilities. The witness does. That is the difference between an argument and a box. The alternatives are closed in the witness's own answers, so reopening one means contradicting himself. Socrates built his box the same way. He did not assert that all of Athens improved the young; he let Meletus say so, group by group, until no group remained.

Quintilian also named the method's weakness. Writing about arguments by elimination, he warned that if you leave out a single possibility, the whole argument fails and the audience laughs. A box is only as strong as the examiner's list of exits.

Let the witness supply the rule

Quintilian described Socrates' method as asking questions the adversary could only agree to, then drawing the conclusion from its resemblance to what had been conceded. He thought it especially valuable in examining witnesses.

The modern version was developed by Nashville trial lawyer Phillip Miller and is taught as the Miller Mousetrap. The examiner establishes a general principle the witness readily accepts, asks why it matters, and lets the witness supply the reasons in his own words. Only later are the facts brought back to meet the principle.

For the merchant, the principle is simple. Containers used to ship oil should be fit to carry it? Why? Because otherwise the oil leaks or spoils. Anything else? Would it be proper to ship a container you knew was defective? None of these questions mentions the shipment. Much later, after the exits are closed, come the inspector's report of failed seals, the merchant's receipt of it, the shipment that went out anyway, and the word he chose to describe it.

Consider the difference between two examinations. In one, the examiner sets out to prove that the merchant acted unreasonably. In the other, the examiner obtains the merchant's own standard for shipping oil, his reasons for that standard, his account of what he knew, and his exclusion of every other explanation. In the second, the conclusion barely needs stating. The witness has assembled it.

A very early illustration of the structure is the prophet Nathan's parable to King David in 2 Samuel 12. Nathan tells of a rich man who took a poor man's only lamb. David, angry, declares that the man deserves punishment. Nathan answers, "Thou art the man." David had pronounced the rule before he knew he was its subject.

Conclusion

Modern teachers gave these questioning moves their names, and the names made them teachable. But the structure is older than any of them: obtain the witness's story, his words, his alternatives, his rules, before he sees what you will do with them. The witness makes the commitments. The examiner decides when their significance becomes clear. Nathan understood the power of that sequence thousands of years ago. He let David pronounce the judgment first. Only then did he say: “Thou art the man.”