Depositions and Civility
Kristen M. Johnson, Esq.
Schwartz Semerdjian Ballard & Cauley, LLP
Attorney: Remember earlier today when I asked you –
Attorney: Why don’t you listen to what I have to say first and then maybe you’ll tell me yes or no?
JDB: I don’t have to listen to anything you have to say.
When video of a famous pop star’s deposition went viral, many were amused by the star’s sarcasm and petulance towards the questioning attorney. While not a regular occurrence, this sort of approach is not entirely uncommon in depositions. Having hostile depositions highlighted in the media because of high-profile participants has the potential to affect the public’s perception on legal proceedings. Public role models treat our profession with disdain, so why should others not treat the legal profession similarly? It is no wonder there is media exploitation and public scrutiny following celebrity depositions.
As state bars move towards promoting civility in the profession by integrating civility language into the oath, the example above should serve as a reminder that civility should not stop at lawyer to lawyer and lawyer to judge interactions. Civility should also be present between lawyers and deponents during the discovery process. Civility can and should be integrated into how we prepare a client for a deposition. Promoting civility in depositions can counter the negative public perceptions that surround this critical process in discovery. This article discusses the deposition preparation steps and ways to encourage civility during depositions.
First, you should not assume that a client knows what a deposition is. If the client is naïve to this part of the discovery process, steps should be taken to explain the purpose of the deposition. A deposition is not an interview, nor is a deposition trial. The deposition is not the place for the deponent to tell his or her story or an opportunity for the deponent to convince anyone, especially the other lawyer, about how right the deponent is. In fact, the deposition is an opportunity for the other side to ask the deponent questions to find out what the deponent does and does not know, and what the deponent would and would not say if he or she was called to testify at trial. It is a process for the opposing side to lock in the deponent’s testimony so the deponent does not surprise them at trial. Depositions are also an opportunity for the opposing side to evaluate how the deponent will come across to a judge or jury. Generally, the more the deponent volunteers, the more information the opponent has to use against the deponent at trial. Argumentative witnesses, especially ones with videotaped depositions, can be a dream come true for an opponent.
If the client has been deposed before, you should not assume that the client remembers the deposition preparation or that a good preparation actually took place. A good starting point is to ask how the previous deposition went. What was the most difficult part of the deposition? What were the easier parts of the deposition? Could your performance have been improved? It is a good idea to get as much feedback as possible about the client’s previous experience.
After exploring the client’s previous experience and explaining the purpose of the deposition, set the stage for your client. What may be second nature to you could be completely foreign for the client. Explain that the deposition does not take place in a courtroom in front of either a judge or a jury, but instead in a lawyer’s office. Give details about who will be there, including the court reporter and any videographer. Provide details about what you will be doing during the deposition and the purpose of making objections during the deposition.
Next, set the parameters for the deposition. Explain that cases are not won from what is said in a deposition, but they can be lost. Outline the causes of action in the case, and all of the necessary elements and defenses for each of them, and also explain how the facts prove the necessary claims and defenses. If an answer destroys or undermines a crucial element of the case, it may lead to a motion for summary judgment that can be supported by deposition testimony. The client should understand that the questions asked by opposing counsel are often meant to prove or disprove the elements for claims and defenses.
Once the client understands the purpose, setting, and parameters of a deposition, go over the following four steps for responding to specific deposition questions: First, listen to the question. Second, be sure that you understand the question. Third, take your time to think about the answer. Fourth, express the answer in the clearest and most succinct manner possible.
After covering these basics, do a dry run with the client. Ask some of the most likely questions you anticipate from opposing counsel so the client can get comfortable with his or her answers. Does your client ask clarifying questions in response to confusing questions, or answer without fully understanding what was asked? Are you being interrupted by the client before you finish asking the question? Going through a dry run with your client will also help you identify if your client struggles with any of the steps identified above such as waiting to hear the whole answer before responding, or providing too much detail and not answering succinctly.
Be sure to advise against the soapbox approach to giving answers, remembering that this is not the time to tell the deponent’s side of the story. Even if the deponent is an expert witness, it is not his job to educate the opposing lawyer or to help her to ask sensible questions. The more a client rambles, the more room there is for error or misunderstanding that has to be cleaned up later (if it is even possible to correct the mistake). If a question is unclear, it is fine for the client to say that he or she does not understand.
Make sure the deponent understands that he is not there to bicker with the questioning attorney or match wits. Sarcasm should also be avoided. When translated to text, sarcasm does not read like sarcasm. Sarcasm is best conveyed using tone of voice and visual cues. If the statement is read back to the judge or jury with different inflections, the words can have an entirely different effect. A deponent should take the most professional approach to the deposition as possible. Encourage the client to remain civil, no matter how contentious the issues may be or how aggressive opposing counsel approaches the deposition. If tension begins to rise, make sure that your client understands that he or she is permitted to take a break to calm down.
No two clients are alike, and it may be more or less difficult for some to understand both the purpose of depositions and how to handle them. Encouraging clients to practice civility in the conference room holding the deposition, just as would be expected in the courtroom, would combat some of the negative perceptions about the legal process and profession. While the deposition preparation process includes informing the client fully about all aspects of the deposition, in the end it is crucial that your client understands and is ready to follow the four steps to answering deposition questions. If the client listens to the questions, understands the questions, and thinks before providing a clear, succinct answer, the client should be able to handle the deposition smoothly. It is unlikely that the media will ever cease to exploit celebrity deposition outtakes, but there is still room for promoting civility in the deposition process.