Our ongoing tour of Famous Novels We Missed Along the Way has introduced us to some splendid prose. Thackeray and Trollope insert subtle judgments just beneath the surface of their narratives. They can teach us much about how to deliver an opening statement that is a powerful argument precisely because it does not sound like argument. Tolstoy is different. He is magisterial. He tells the whole story in such a way that any supplement or counterpoint seems unimaginable. Dostoyevsky, by contrast, wears his biases on his sleeves. His writing grabs you by the lapels and screams in your face. You might not fully follow the sense, but the sensibility is irresistible.
The Brothers Karamazov culminates in a criminal trial. The prosecutor faces an uphill battle. He gathers up all of his rhetorical resources as he mounts a case against the eldest Karamazov brother. In describing the moment of the murder, here is what the prosecutor says in closing argument: “I do not know whether Karamazov thought at that moment of what lies beyond or whether a Karamazov could think, in Hamlet fashion, of what lies beyond. No, gentlemen of the jury, they have their Hamlets, but so far we have only Karamazovs!”
Alas, our time spent marinating in the Western Canon is insignificant compared to our time reading the stuff that pays the bills. There is very little of Hamlet or Karamazov in pleadings, briefs, and discovery responses. It is even less likely we’ll find a felicitous turn of phrase in deposition transcripts, which have occupied (too) much of our recent reading. It has not been pleasure-reading. Perhaps that is unkind. After all, deponents are nervously fendIng off hostile questions. There is little opportunity for craftsmanship.
Then how to explain the doltish quality of many of the questions, which can be plotted out in advance? Clumsy interrogation can burn the ears, if you are present, or hurt the eyes if, like us, you have the misfortune of reading after the fact.
We choose not to endure this misfortune alone, so we will share with you a taxonomy of deposition malapropisms. This list is neither fair nor comprehensive. It is more Dostoyevsky than Tolstoy. Or perhaps it is more Bulwer-Lytton. You won’t find howling errors of illogic or barbaric yawps of hostility. You can read or watch plenty of that stuff online. Instead, what follows are examples of mangled language. In each instance, the error is unnecessary; it is an own-goal. And in each instance, what drives the verbiage off-course is a propensity to say too much. These are errors of commission, not omission. The Emperor told Mozart his music had too many notes. Depositions have too many notes. The transcripts are bulging with rubbish.
— And so we begin.
Just prior to authoring this post we had thrown aside a deposition transcript in which fully half the questions began with the word “and.” This transcript is not an aberration. Why do so many lawyers insist on tacking a superfluous “and” at the beginning of so many questions? Maybe it is a mere verbal tic. Our theory is that the lawyer is trying to lull the witness into letting his/her guard down, and the “ands” are part of that lulling. The “and” is intended to suggest that the next assertion logically follows and must command assent. But guess what? It does not work. Rapid-fire questioning without the “ands” works better. Moreover, after the fact, the incessant and-ing presents badly. Try reading aloud a depo transcript and drop the ands. The improvement is inescapable.
— “May I ask you a question?”
Well, this is a deposition. Asking is sort of the point, isn’t it? You do not need to ask permission to ask questions. You do not even need to ask permission to ask silly questions. Just ask them, and the other side will let you know how silly they are. Whenever we hear a lawyer ask “May I ask you X?” we pray our witness will remember our prep sessions and answer along the lines of “Sure, go and ahead and ask” or the snarkier “Do you think you can?” As with so much of bad legal writing or speaking, the “May I ask” or “Let me ask you this” are useless pomposities. And why would the questioner want to slow things down?
— “Can you tell us?” “Sure.”
We all know the classic example in depo prep of how to listen to a question and answer only the question: “Q. Do you know what time it is? A. Yes.” The “can you tell us” formulation rams its head right against this trap. The questioner traps him or herself. What is gained by the can-can dance? Napoleon said that in warfare the one nonrenewable resource is time. Asking whether the witness can answer X, rather than simply asking X, wastes time. As with all of these examples of inept interrogation, the throat-clearing “can you tell us” commits the sin of not getting to the point.
— “Opportunity” costs
There can be a perfectly good reason to ask someone whether they had the opportunity to do something. For example, if they had the opportunity to run a test but did not do so, that failure can be probative of negligence. But that is almost never what is going on when a questioner asks the witness whether they “had the opportunity” to do something. E.g., “Did you have the opportunity to meet Dr. So-and-so?” The question really is about whether the witness did something. “Did you meet Dr. So-and so?” So why not simply ask that?
— “Do I understand?” “Probably not”
We want to plant the dunce cap on questioners who ask something like,”Do I understand that your company policy is X?” Huh? In the good old days, when speaking objections were considered a perfectly acceptable way of bashing an opponent, we might have asked the questioner how on earth the witness is expected to know what our not-so-learned opponent understands. (Depositions in the 1980s could be nasty affairs. Whenever our opponent objected that our question “assumed facts not in evidence,” we’d snarl that “Nothing is in evidence, counsel.” Yep, we obviously weren’t trying to make friends in our salad days. But look how nice we are now!) Obviously, what the questioner meant was something along the lines of, “Am I right in my understanding that your company policy is X?” Somewhere along the way, the questioner dropped some of that explanation, and ended up inviting the witness to engage in ESP. Even if the questioner correctly got the whole question in, how is that question made better by the extra fluff? Why not ask “Is your company policy X?”
— To a “fair” thee well
Some lawyers think they are doing real jury trial stuff when they ask deponents “whether it is fair to say X?” We’re not against lobbing two or three “fair to says” in the course of a seven hour marathon (more on that later), but when those “fair to says” litter virtually every page of the transcript, we begin to doubt the questioner’s mental plasticity. Is it fair to say that the questioner’s head is filled with mush? The “fair to say” becomes a crutch, or a gap-filler only slightly more elegant than an old-fashioned, honest “ah” or “um”. (Would you agree with us that “would you agree with me” is similarly overused? It is that “me” part that annoys us. Me me me. It is useless personalization. What is the value of this unctuous utterance? Is it folksy? Does it signal some larger agreement? Or does it quickly grow tiresome? Do it more than a couple of times in a deposition and you have done it too much.)
— “Did I read that correctly?”
If lawyers were forbidden to read from documents to witnesses and then ask “did I read that correctly?” the length of depositions would be trimmed by at least 20%. Look, the document says what it says. If you want to ask a witness what some words meant, or whether they were acted upon, or anything else about them, just ask. The “did I read that correctly” is even dumber when – as is usually the case – the witness did not author the document, or maybe didn’t even have much to do with it. A sharp judge will exclude the testimony as lacking personal foundation per Rule 602. In any event, your (we’re addressing this to plodding blockheads posing as plaintiff attorneys) exercise in responsive reading is a bore. Plus, you will probably screw something up because, let’s face it, reading isn’t really your thing and you’re not that smart. Come back at us after you’ve perused Tolstoy and Dostoyevsky.
— “Is the term X anywhere in this document?”
The same folks who brought you “did I read that correctly?” have lots of other ways of insulting eternity by killing time. One of the old standbys is to ask the witness whether a word appears anywhere in the document. It is either there or it isn’t. Let’s play along and assume it isn’t. If the witness is literate and accurately tells you the word isn’t there, what have you gained? More merry is the situation where the witness gets it wrong. Serves you right. For sure, it might make sense to ask the witness whether there is anything in the document that suggested something to that witness, but that is almost never what is asked. Rather, the questioning descends into turning the witness into an unnecessary document-delivery device. Any good judge should sustain an objection of “the document speaks for itself.” (Hmmmm. Just putting matters that way possibly clarified why plaintiff lawyers keep hammering away at this plank, even after the nails are all the way in and are even coming out the other side.)
We mentioned earlier how depositions are too often marathons or death marches. Over the years, it has become clearer and clearer that most depositions have the volume and nutritional value of a box of sugary cereal. Most of it is empty, and what isn’t empty is not good for you. We all know that a seven hour deposition means nine hours chained to the conference room table (or Zoom platform). Isn’t it about time to amend the Federal Rules of Civil Procedure and make the presumptive limit of depositions four hours. As they say on Twitter, who’s with us?
— The horror vacui “Okay”
The same lawyers who begin most of their questions with “ands” greet whatever the answer is with a bovine “okay.” What is that all about? Another verbal tic? A phony effort to bond with the witness? We knew a judge long ago who bellowed at lawyers who uttered an “okay” after the witness answered. ‘You’re here to ask questions, not signal approbation of the answers, counsel!” Or something like that. Once again, those okays slow things down and give the witness extra time to think. Or are you the one who needs more time to think? Shame.
— So it goes.
Many deposition verbal stains come courtesy of the questioner. But the robotic “so” at the beginning of a sentence more often comes from the witness. Somewhere between our college days and the present, the custom of initiating answers with an unnecessary “so” became prevalent. Often the say-so’ers (or so-sayers) are smart people, and the “so” seems devised to convey a sense of obviousness. Or inevitability. Or maybe it’s condescension. In any event, once you start noticing all those so’s, you start noticing that they are driving you nuts. Turn on NPR and listen to an interview with an egghead. You will reap many so’s. During a prep session with a company scientist, we could not help pointing out to our witness that she began every single answer with the word “so.” And then she became like the centipede who suddenly thought about how to move all those legs, started catching herself as being a so-ing machine, and soon lost the power of speech entirely.
So maybe that was a mistake on our part.
Henry Fielding wrote that wisdom brings the habit of laughing at the faults of others while grieving in our own. In wrapping up this screed, we must admit that we ourselves have been guilty of each and every offense outlined above. Indeed, some reside in this very post. Transcripts of depositions we have taken overflow with excess and pretension. They are like signed confessions of imbecility. All we can do is try to do better. And if one day you are sitting across the deposition table from us (assuming we are ever permitted to return to pre-social distance days), let’s be kind to each other, let’s be professional, and, most of all, let’s be brief.