Photo of Stephen McConnell

Our last few weeks have been filled with depositions.  Mostly we have been defending them.  And mostly we have exited the proceedings feeling they were non-events.  That is precisely how you want depositions to be when you are defending.  No doubt many of you have seen videos of crazy depositions, with bellicose attorneys, mask-wearing family members, or witnesses who artfully boil down their entire testimony to two words.  Those depositions happen to other people, and we are glad of it.

When we were fresh out of law school (supply your own interpretation of “fresh”), depositions were viewed as the first stepping-stone to being a real litigator.  Before our first deposition, in a case involving stolen dirt, we must have read every practice guidebook in sight.  We sought out advice.  We perused stray deposition transcripts lying around the office.  And then the big day arrived.  The deponent arrived with a friendly handshake.  We didn’t expect that.  He wore a bolo tie.  He was a well-tanned septuagenarian.  Whether he was also a dirt thief (a big deal if you want to build houses in Palm Springs) was the issue at hand.  But first some preliminaries.  We traipsed through the usual admonitions.   When we arrived at the question about whether the deponent was taking any medication, this is what we got:  “Why, yes, young man, I am.  As you have no doubt noticed, I am an elderly man.  But I am also a man of appetites.  I still very much enjoy the physical act of love.  To maintain my desired level of amorous activity [he really did talk a little bit like Foghorn Leghorn] I take hormone pills throughout the day.  Shall I tell you how they work?”  Um, no thanks.  We were stumped.  Sometimes young lawyers learn the dance-steps but do not know the reasons for them.  It was not obvious to this particular young lawyer how to follow up on the information about the passion pills.  Would the deponent need an especially long mid-afternoon break? (Cue the Starland Vocal Band.)  We never did find out for sure what happened to that dirt.

Nowadays we think we genuinely know what we’re doing at depositions.  And this confidence has earned us the right to be cranky.  Hardly a deposition takes place where we do not grow exasperated with our opponents.  Whether we are taking or defending depositions, within fifteen minutes we become convinced that the advocate across the table from us is a dunce.  It is hard not to throw something when, after we launch a perfectly sensible question seeking concrete, percipient knowledge on the part of the witness, the defending (some insist on using the term “guarding”) lawyer sees fit to interject this bit of deep advice:  “If you know.”  Nothing shouts out bush league like “if you know.”  Look, shortly after we ask about medications (yes, we still do that, and now we even know why), we tell the witness that we are seeking personal knowledge, not guesses or speculation.  There is no need to remind witnesses that they should answer only if they know.  When we are greeted with that spurious non-objection — a transparent effort to coach the witness to say “I don’t know” — we usually hearken back to the admonition about personal knowledge and inquire whether the witness recalls it or whether a blunt instrument has descended upon the witness’s noggin so as to render that poor individual incapable of remembering or understanding that rather elementary point.   Sadly, such an act of shaming seldom deters the litany of “if you know”s.

Truth be told, we might simply have an issue with the ham-handedness of the “if you know” gambit.  Within our wingspan as we type this post there is doubtless a deposition transcript where we lobbed in an objection along the lines of, “Objection.  Lack of foundation.  Answer if you can.”  Is that any better?  Maybe.  At least it sounds like a real objection, one that might even be uttered in open court.  And the foundation point is inserted when the very terms of the question seem to suggest that the witness has no basis to answer as a matter of personal knowledge — e.g., asking how folks in a different department maintain their documents.  But are we suggesting to the witness that “I do not know” is the correct answer?  Maybe.

At least we do not engage in speaking objections.  We have taken depositions where it is clear that we are very close to skewering the witness and getting him to admit to some colossal blunder.  Then, like a deus ex doofus, the defending-guarding-obstructing-cheating lawyer arises from his or her squirm and blusters out something like, “Objection.  That completely ignores the fact that other witnesses in the case have testified that [blahdy-blah].”  Can we all agree that this sort of thing is bad form?  And yet the offenders get away with these sins if they pick their spots carefully.  Unless the coaching is virtually
ubiquitous, judicial intervention is unlikely.  There are way more threats to call the judge than there are actual calls.  So what stops us from doing it?  If not fear of sanctions, then what?  Maybe it is pride.  After all, one can achieve the same result — frustration of the inquiry — by more elegant means.

When we defend depositions, we find ourselves airing our unhappiness with questions by saying things like, “Objection.  Form and foundation.”  Or “Objection.  Calls for speculation.”  That’s it.  You won’t hear us littering the record with mini-closing arguments.  (Sometimes we say “Objection.  Assumes facts not in the record.”  We have been saying “in the record” instead of “in evidence” for over 25 years, ever since we heard a crotchety lawyer ridicule that objection by growling, “Nothing is in evidence, yet, counselor.”  We were impressed.  That lawyer went on to run a motion picture studio.  He told us that his rule was to green-light any movie he hated and to shut down any film that threatened to please him.  True story.)  Basically, we try to articulate deposition objections in the same way we would if we were at trial.  Somewhere in the recesses of our reptilian mind, that’s what we recall the rule was.  Every once in a while, after we state an objection along the lines above, the interrogating lawyer will gaze at us superciliously, and lecture us that objections should be “to form” only, as “required by the Federal Rules.”  Really?  Maybe there are some jurisdictions that limit objections “to form,” just as there are some that forbid all objections except on grounds of privilege (affectionately known as the “potted plant rule”), but the Federal Rules do not say that objections must be confined to the words “to form.”  Instead, Rule 30(c)(1) says that examination and cross-examination should “proceed as they would at trial” — we knew we had read that somewhere! — and Rule 30(c)(2) says that “[a]n objection must be stated concisely in a nonargumentative and nonsuggestive manner.”  That is exactly what we try to do.  And the truth is that if you have prepared your witness well, that is all you ever need to do.  In fact, if you have prepared the witness really well, you can defend a deposition without saying much at all.  You can smirk while your witness insists that the interrogator frame a sensible question.

If you are asking questions, it is probably best simply to ignore the objections.  Keep your eyes on the witness, point a finger (politely) at the witness before the objection is finished, and, one nanosecond after the objection concludes, say, “You may answer.”  Rinse, then repeat.  Pretty soon the witness starts answering over the objection.  Nevertheless, some lawyers feel the need to engage with objections.  Obviously, if the objection is proper and there is an easy corrective, it is wise just to smile and accept the correction cheerfully.  For instance, when there is an objection to a compound question, it is fun to nod and thank your opponent for pointing out the need to break that one question down to several. It is like telling witnesses that their lawyer is doing her best to lengthen the festivities.  But occasionally there is a felt need to besmirch the objection.  Thus, if the objection is “Vague and ambiguous,” the lawyer might try rescuing the question by asking the witness if he or she understands the question.  Is that really a fix?  Maybe the problem is not that the witness does not understand the question, but, rather, that the jury might misunderstand what is going on.  If the questioner and the witness are conversing in some private language, or if the witness mistakenly apprehends the meaning of the question, the objection still seems valid.  The fact-finder is entitled to a clear record.  Sometimes when the objection is “argumentative,” the interrogator turns doe eyes on the witness and asks, “You did not think I was arguing with you, did you?”  If we object on the grounds of “argumentative” and our opponent gets our witness to say there was nothing argumentative in the question, we will have a hard time hiding our disappointment.  We might even argue with our witness at the next break.

We were not an active participant at the best deposition we ever saw.  It was an antitrust case.  The plaintiffs alleged that they were trying to build a natural gas pipeline, and that our clients squashed them for anticompetitive reasons.  In reality, the only thing the plaintiffs wanted to build was a lawsuit.  But we are getting ahead of ourselves.  The plaintiffs got around to taking a supremely pointless deposition of a third-party.  That third-party was represented by a legendary Houston lawyer.  He was a big guy with a big reputation, a big personality, a booming voice,  and long, flowing locks.  He also wore a bolo tie.  (If we look back on the oddest moments in our career, there will almost always be a bolo tie somewhere in the picture.  Call it a memento bolo.)  (One time we told this story to a Houston court reporter who was able to guess at the name of the defending lawyer before we said it.)  The case was in federal court in Alabama, but the deposition was in Houston.  Perhaps the defending lawyer, knowing he would never need to appear in front of the judge, felt emboldened.  Or perhaps he did not need hormone shots to have fun.  Whatever — it was a fascinating performance.  The deposition was videotaped.  And it was contentious.  There was a particularly nasty question insinuating that the deponent had been fired for incompetence.  Here was the objection:  “Don’t answer that.  That’s a chickensh*t question.”  The interrogator blinked.  “I’m sorry.  What was that objection?”  And then the defending lawyer did something we had never seen before.  He stuck his face in front of his client and declaimed to the non-present judge.  That is to say, he spoke straight to the camera:  “Your Honor, I am sure in your many illustrious years as an Article III judge in the beautiful city of Birmingham, you have frequently heard,  and sustained, the well-known chickensh*t objection.”  And it went on from there.  After a long series of objections, the interrogator jokingly advised his opponent not to be “so nervous.”  Again, our hero planted his face in camera-view, then he cackled, “Nervous?  Do I look nervous?”  No, he did not look the least bit nervous.  And we were mightily amused.  There wasn’t a dry eye in the house.  Or maybe a dry seat.  Near the end of the depo, the defending lawyer made a great show of standing up slowly, then announcing to the questioning lawyer, “Boy: you doin’ a real nice job.  You keep asking your lil’ questions while I head down the hall and take a wiz.”  And then he left the room.  It was his none-too-subtle way of telling his opponent that he couldn’t lay a glove on the witness.

We ended up getting out of that case on summary judgment.  That enormously entertaining deposition made no difference in the case, one way or the other.  That, of course, is the thing about depositions. Mostly, they do not matter.  Maybe they are like what some people say about war — vast periods of boredom interrupted by brief moments of terror.   Luckily for us, there hasn’t been much terror lately.