Law blogs are full of “how to’s” on deposition techniques. Do a quick search and you will find tons of hints of all kinds. You can find checklists, tips for client preparation or articles on effectively using exhibits. I’ve written some things like that myself. But today I have a quick lesson in what not to do when defending a deposition, and how to handle it when it happens.
This is from a deposition we recently took of a defendant driver in a car accident case that is pending in federal district court:
Q. And are you contending in this lawsuit that Mr. Plaintiff is a faker?
A. Again, that is not something personally I have any evidence to suggest otherwise. I think that will come out with testimony and through this fact-finding.
Q. So is that yes, no, or I don’t know?
Defense Counsel: I object. The question’s been answered. Go on to the next question. That’s a
Q. I’m not sure I understand your answer, Mr. Defendant. Are you making a contention that Mr. Plaintiff is a faker in this case?
A. I am not making that contention.
Now, there are a couple of lessons here.
First, this is not how to object at a deposition. Can you spot any legally cognizable objections in what defense counsel said? Arguably, I can spot one- “asked and answered.” Although I don’t agree that it is a meritorious objection, at least it sounds like something that could conceivably have a legal basis. The next thing defense counsel said- “Go on to the next question”, isn’t an objection at all. It’s just an attempt to bully and obstruct my questioning. And finally, the last part: “That’s a dumb question.” Really? I don’t know what this is or what it was supposed to accomplish. But in any event, it isn’t an objection either.
The lawyer defending this deposition (a partner at the Baltimore office of a national law firm) should have known better. What he’s doing doesn’t advance his client’s interest or help defend the case. But you do see things like this from time to time, usually from a senior lawyer trying to bully a less experienced lawyer into accepting a non-responsive answer from the deponent.
Lesson two here is what to do when opposing counsel tries to pull something like this. There is a school of thought that believes in fighting fire with fire. Under this approach you act all angry and offended, and said something like “This is my deposition, I decide when to move along and I will continue my questions until I get a responsive answer. Make your objection and then be quiet.”
But there is no value in getting into arguments with opposing counsel at depositions. I want to fight for my clients and then get home to my family. You cannot take this stuff personally and survive in this business. I just ignored the guy and kept with my examination, ultimately getting a responsive answer. And I would have kept at it until I got a responsive answer, or he instructed the witness not to answer. Instead of a useless argument with counsel, I got a responsive answer to my question.
I think I know what was really going on. This lawyer didn’t know me, and we had never had a case together before. So near the beginning of the deposition, he took his shot to see if he could push me around. It didn’t work, and I don’t think he said anything else during the rest of the deposition.
So if this happens to you, stick to your guns and be persistent. Eventually, you will get one of two things: a responsive answer, or a transcript showing a witness being overtly evasive with the assistance of counsel. The former is what you wanted all along, and the latter has a variety of uses at trial, especially if it is on video.