Let’s talk for a second about the assholes you meet at depositions.
Alright, so you folks should know that over the past few days I’ve been involved in the most hell-ridden part of litigation, namely the process of deposing an opposing party and letting them depose my client. Not only were these depositions, but these were the most soul-crushing of all depositions: The trial deposition, where civility flies out the window and people start talking over one another so quickly that the record appears to be half-written sentences with multiple interruptions.
If you’re not familiar with the trial deposition, it’s used when the witness that you’re deposing, and in some cases the party that you’re deposing, won’t be available (or may not be available) at the time of trial. Here, in Pennsylvania, we also use it in certain circumstances where there’s no such thing as an evidentiary hearing because of the nature of the action. In these rare situations, the entire evidentiary record as it relates to that one witness is going to be in the deposition transcripts. The whole nine yards is in play in the trial deposition: evidence authentication, objections, responses to objections, etc. The court then picks over the deposition transcript and makes determinations as to admissibility, objections, etc. in its review.
If they sound like long, tedious affairs, they fucking are.
You know what makes them worse? Fucking Lawyers.
But it got me thinking over the weekend, as we prepared for round 2, as to the types of lawyers you tend to run into at depositions. Opposing counsel’s behavior wasn’t out of the ordinary. It was just more pronounced and combative. He was an Obstructionist. He could have just as easily been a Buddy Guy, a Blowhard, a Rabbit, or a Wildcard.
Oh, you don’t know what any of that means? Well, that’s cause I just made up the fucking labels. It’s what I do. But generally, those are the types of lawyers you’ll run into in a deposition…hey, can you guess what I’m about to do? That’s right.
I’m about to spend two days talking about the 5 Lawyers You Meet In Depositions.
Lawyer 1: The Obstructionist
This guy is a dick. He’s going to object to everything, he’s going to fight over clearly admissible evidence, he’s going to make speaking objections to coach his clients, and he’s going to try and wear you down. His strategy is simple: make the deposition the worst goddamn ordeal you’ve ever sat through in hopes you either throw up your hands or rush through your questioning just to end the fucking nightmare that’s being in the same room with him.
Take, for instance, my opposing counsel in the set of depositions I’m currently doing. For the first day we were deposing his client, every…fucking…question drew an objection. His client was evasive. I came to expect the objection on every question, the tiresome litany of reasons that something his client said wasn’t admissible or how my questioning breached the boundaries of evidence. The court reporter stared agog at the proceedings, especially when he latched onto a new objection halfway through the questioning:
“I’m going to object. You’re mischaracterizing her statement. She said X.”
“No,” I answered, “She said Y. Verbatim.”
“Well, the record speaks for itself.”
“It does. Could the reporter please read back the witnesses answer to the question we asked regarding….”
Then the tedious process of the reporter scrolling back through her notes to read the statement, wherein the witness said “Y” twice in response, began. I went into this deposition with three hours of questioning. Nine hours later, we were done with my questioning.
Jesus. Fucking. Christ.
So what the Pros, Cons, and Strategy for facing an Obstructionist?
The benefit of the Obstructionist is that he comes across as the world’s biggest dick on the record, and you’ll at some point be getting this record in front of the judge. You’ll do it either in summary judgment or, if it’s a trial deposition, as a manner of admitting the testimony and the exhibits offered during it into the evidentiary record for the judge to make a determination. The Judge, if he has half a brain (which can be a leap of faith to assume), will see the Obstructionist for what he is, and will not appreciate it.
This guy’s strategy is to make you miserable. He wants you to snap and be a dick. He wants you to lose your cool on the record, and he wants you to be so angry that you aren’t thinking straight. Frankly, these assholes are pretty good at doing it, too. He’ll drag you into the mud and the muck with him on the record if you lose it, and if you lose sight of what you’re actually doing, he’ll get you to miss some crucial question.
Throat punch the son of a bitch.
No, no, don’t fucking do that. Take a break and grab a donut, breath deeply, and get back to it. The Obstructionist is why my deposition outlines are insanely detailed. I know that he’ll drag me off course, but that’s his goal, and the fact of the matter is that once he sees you have something keeping you on track and you won’t be dragged off course, he’ll calm down. Make it clear you’re willing to be there all night to finish your examination, and you’re fine with making his witness come back the next day.
This strategy is banking on making you miserable, not his client. If he complains about the timing, look at his client while talking to him and say “Well, I’ve been trying to keep it short. But I have to respond to your objections.” If you make it clear to the client that they’re still there only because of his attorney, the client may start putting some fucking pressure on him to shut the fuck up and let you ask your goddamn questions.
Above all, though, you need to remember that everything is going into the record. Judges will see through the bullshit pretty goddamn quick. They aren’t stupid, and they’ll be able to tell when your opposing counsel is simply trying to make everyone in the room miserable for the hell of it. When you brief it, feel free to point out that this asshole crossed the line from “zealous advocacy” to “Inquisition-esque torture tactics” the moment you asked his client their name.
Lawyer 2: The Buddy Guy
On the other end of the spectrum from the Obstructionist is the Buddy Guy. This guy is normally an older lawyer, dresses shabbily, has an “Aw Shucks” smile, and sets your client at ease the second they start the deposition. Although they’re deposing your client, they act as if they’re all just there to have a nice little conversation and, gee whiz fella, just ignore that little lady in the corner taking down every word we say. Everyone is friends with the buddy guy during the deposition, and we can all rest easy. Right up until he writes a brief that eviscerates your client based on the answers he gave to questions you let slip by because we’re all being so goddamn friendly.
I’m not a fan of the Buddy Guy, because they have a tendency to get clients just comfortable enough to talk more than they should, and outside of kicking a client full fucking force in the leg under the table there’s really no way to shut your client up once they start answering the questions. You ever kicked a client full force under the table? It isn’t fun, especially when their loud “OW! WHAT’D YOU DO THAT FOR?” gets into the record. But sometimes you gotta hit a client, and I’d be lying if I said it wasn’t a little satisfying.
Here’s the good thing about the Buddy Guy: they try to smooth things along to keep with their easygoing demeanor. That means that they’ll either cave a bit when pressed and give you an edge or they’ll turn into an obstructionist. The first lets you get away with avoiding a question by timing an objection, or allows you to get a question reworded in a less harmful manner. The second makes them drop the “Oh, we’re all friends here!” act and causes a dawning realization to come over your client that they aren’t just one big happy family in the room.
Your client will like the Buddy Guy. The Buddy Guy is a hell of a lot nicer to him than you’ve been over this whole thing. The Buddy Guy is listening to them, and being friendly, and gosh golly gee willikers, is even offering them bathroom breaks. Any attack on the Buddy Guy is going to look like you’re being an asshole to your client, and on the record as well. Until that mask comes off, you’re the asshole in the room. That’s not a problem for me, it may be a problem for you.
Throat punch the son of a bitch.
No, once again, don’t throat punch him. The strategy for the Buddy Guy is a two parter:
First, unmask him as quickly as possible. Object as needed and press the Buddy Guy early on to make it clear that we are not all friends in the room and we are not just having a minor, civil conversation. This makes it clear to him that it isn’t your first rodeo and gives him a hard choice on whether to change his tactics or try to circle around. It also, if your client isn’t a complete fucking moron (assumptions again) reminds your client that this nice older gentlemen is the fucking enemy.
Second, prepare your client in advance and remind them throughout. You should be meeting with clients in advance of a deposition to prepare them. You should be saying “I don’t know and I don’t remember are perfectly valid answers.” You should be establishing signals for when you need to talk to them, such as asking your client “Do you need a break?” literally meaning “Ask for a fucking break you goddamn sieve of information.” Remind your client during breaks that this nice gentlemen is trying to fuck them over, and they need to shut the fuck up and not offer every piece of information they have like a prom night virgin spreading her legs (I’ve used that in a few posts now. I like it).
Also, and I mean this in all seriousness, don’t be afraid to hit your fucking client under the table. Nothing shuts them up faster than their lawyer slamming his foot into their shins. Explain later, injure now. Plus, it’s a little satisfying to get paid for hitting someone.
That covers two of our types of Five Lawyers You Meet In Depositions. Tomorrow I’ll talk about the Rabbit, the Blowhard, and the Wildcard. Today, though, I got shit to do.
Because I have more depositions on Friday.