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.Continue Reading Deposition Lojinks
