Thursday, January 07, 2010

Curmudgeon explains deposition practice

Much of the time after a civil case is filed and before it comes for trial is devoted to something called "discovery."

Discovery is another word for billing.

Well, not exactly: In discovery each side tries to find out juicy information about the other that will, if revealed, cause the opponent to seek surrender (settlement) terms.

There are several different discovery "tools." These may be called different things in different jurisdictions but the major ones are interrogatories, document requests and depositions.

Today's lesson is about depositions.

Depositions are where a lawyer tries to find out what a person will say at trial by asking him or her questions that the lawyer would never, ever ask in front of a judge or jury.

A deposition is just like any other conversation.

Except that it's usually conducted in someone's conference room. And the witness is under oath, of course, and in at least theoretical danger of being slapped with a perjury charge if he or she lies (and, in case the witness happens to be President of the United States, in danger of being impeached). And Every Single Word Spoken is taken down by a court reporter. And an attorney for every party in the case may be present waiting for a turn to ask the exact same questions that his or her colleagues have asked already.

Other than these things, a deposition is just like any other conversation.

Sometimes the witness is represented by counsel. Usually that's because the witness is also a party to the suit. But sometimes the witness is not a party and has an attorney present because the witness wants to stay that way.

The attorney representing a witness at a deposition usually believes that his or her job is to interrupt every time the lawyer asking questions starts asking questions that might reveal relevant information. This sort of deliberate obstruction is typically prohibited by ethical codes, so the obstructions are usually framed as objections. The experienced practitioner will remind counsel that speaking objections are prohibited (at least they are in the jurisdictions in which I've practiced) -- which reduces the interrupting attorney to becoming something of a verbal Geiger counter: Objection. [Long Pause.] Objection. [Shorter Pause now.] Objection.... Objection.... Objection.... [Now No Pause At All.] Objection!Objection!Objection! Thus does the experienced attorney hone in on the good stuff without having to prepare too much.

Depositions are often taken of persons who have submitted Affidavits. Affidavits are also testimony but, because they are pieces of paper, are notoriously hard to cross examine.

An attorney who wants to "test" an Affidavit will seek the deposition of the "Affiant" (that's the person who signed the paper). Usually the lawyer will ask the Affiant-witness if he or she said each of the things that he or she already said in the Affidavit. Now these things have been said twice.

Of course, sometimes a witness will surprise everyone by, for example, denying that he has have ever seen that paper in his life. Then someone -- the lawyer who drafted the Affidavit, for example, helpfully points to the witness's signature and asks a clarifying question: Isn't that your signature?

The witness's agreement that this is indeed his or her signature may not do all that much to restore the witness's credibility, but it presumably spares the lawyer a disciplinary inquiry.

Another way that lawyers "test" Affidavits is by asking the witness whether he or she prepared the Affidavit.

Let me say this to the lawyers of America: Any darn fool who would let a non-lawyer witness prepare his or her own Affidavit should be immediately disbarred on the grounds of terminal stupidity. Of course witnesses don't prepare their own Affidavits; hopefully the witness has supplied the factual information that is at the core of the document -- but the ribbons and bows and linguistic flourishes must be supplied by a lawyer licensed in the jurisdiction and well versed in the peculiarities of the local practice.

I recently watched a lawyer ask a bunch of nice people who signed Affidavits in a case whether they prepared their own Affidavits. I only wish one of them had responded this way:
Q. Did you prepare this Affidavit?
A. I provided the information that's in this paper, yes.
Q. No, I mean, did you physically prepare the paper?
A. Are you asking whether I go around starting stories by saying, 'I, BARTHOLOMEW T. BOONDOGGLE, being duly sworn on oath?' Do I push away from the table at the country club on Saturday evening, having regaled all present with my latest golfing triumph, by proclaiming 'FURTHER AFFIANT SAYETH NAUGHT'?
Q. Well, yes, I suppose....
A. No, I don't. Do you?


Shelby said...


funny. :)

Dave said...

I like depositions, that I take. The witnesses often thing they're smarter than I am. They sometimes are; but, they often think it is the conversation you mention. They also forget that I've done this more than they have.

Though I talk about that conversation problem with my witnesses, they often think they are smarter than the lawyer on the other side when they are deposed, with similar results. The other lawyer usually has done a deposition or two more than my witnesses.

Then there was the genius that I deposed years ago. He was a bridge engineer that had invented some sort of suspension system. About a half hour in I asked him, sincerely, to treat me like I was a five year old as I had no idea what he was talking about. He obliged me; and, to this day, I have no idea what he told me. We settled on the day trial started.

I was looking forward to crossing him, with his British accent, in a Fulton County, Georgia courtroom. If I don't know what he said, they probably wouldn't have either.

Then there's the billing.

Jean-Luc Picard said...

I got lost somewhere in the explanation.

Anonymous said...

I am not a trial attorney, but I remember being told once of a lawyer who began every deposition by saying to opposing counsel, "Let's not drag this out and agree now that I object to everything you say, and you object to everything I say."

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