“Put Your Phone Away:” 5 Tips For Defending Depositions

Well, we’ve had some fun. Coming off of Fetish Friday and last week’s ramblings on non-profits and law school, I figured maybe it was about time I wrote something that had some bearing on the actual practice of…you know…law. Something that lawyers may actually like to read, because that’s the reason I initially started this shitshow of a website, to give profane and profound opinions and advice on the practice of law.

So, today I’m talking to you baby lawyers out there, you assholes with more ego than experience who are about to start forming a whole fuckin’ steamer trunk of bad habits that you’ll carry with you through the rest of your practice. This Bud’s for you, guys, now loosen up those ties that you’re paying way too much for, unbutton the jacket of that suit your Daddy bought you when you passed the  Bar, and take a seat at Boozy’s feet to listen to me ramble about defending depositions.

Because, contrary to what a lot of fucking websites and lawyers will tell you, it is fucking important that you actually defend a deposition appropriately or risk looking like a goddamn moron.

Alright, there are a lot of fucking muggles reading the site now, so let me take a brief moment to explain what a deposition is. A deposition is a mind-numbing experience in the discovery process where you and your opposing counsel get to call folks into a room and ask them a bunch of questions. The formal rules don’t apply during objections, and you can ask questions that wouldn’t be admissible in an actual evidentiary hearing or trial, because the whole goal of discovery is to locate information that could be relevant and admissible to the case. As such, most of the time, when defending a deposition, you’re going to be constrained to “objecting to form,” which is an unspecified objection normally followed with the words “you can answer” to your witness.

Since the process is so damn informal, though, it has led to a belief among lawyers, especially some older lawyers, that depositions “don’t matter” and can be defended by anyone with a fucking pulse. What does it matter, right? I mean, if any fucking idiot can defend a deposition, they can’t be all that important, right?

Wrong motherfuckers, and seriously, by now you should be fucking aware I’m setting you up when I ask a question like that. Depositions certainly fucking are important, and I can tell you why in two fucking words: “summary judgment.”  Admissible statements made in a deposition can be used as evidence in support of a motion for summary judgment, ending the fucking matter before you ever have a chance to get the information out in a trial.  Want another reason they’re important? Impeachment. Your client’s deposition testimony can, and will, be read back to them at trial, in front of a motherfucking jury, to contradict whatever they say on the stand.

Depositions are building a fucking record which the judge can use to decide the case before it ever goes to trial, and creating a record of exactly what your dipshit client said that can be thrown back in their face, and for those two reasons alone you shitstains need to stop treating depositions like they’re some meaningless process which serves only to increase your billable hours and suck away huge portions of your day. You have to effectively defend a deposition to preserve your case, but most offices and most law schools gloss right the fuck over how to do this.

Luckily, you have me and my Five Basic Deposition Defense Tips.

Put Down Your Fucking Phone.

Let me ask you a question: would you think it was okay to have your phone out while you’re in the middle of a fucking trial and your client is being examined by opposing counsel? No? Alright then…why the fuck is it okay during the goddamn deposition? I shit you not, I once watched opposing counsel play fucking Angry Birds during the deposition of their client. Angry. Birds. Didn’t have a care in the world what was happening until some part of their brain kicked in and they realized that their client was admitting to liability on everything while they were busy trying to kill the little green pigs.

Leave your phone in your briefcase and check it on breaks. Going into a deposition that you’re defending, the only shit in front of you should be a legal pad and a pen. You should be ready to listen and take notes, especially listening to the question that’s being asked and the answer that’s being given, taking notes the whole damn time because…

You Need To Rehabilitate Your Witness.

Your client or witness will fuck up at some point in time, no matter how well you’ve prepared them for the deposition, and for whatever reason you won’t be able to subtly kick them in the shin to shut them the fuck up as they admit to everything…so you need to be ready to jot down three or four questions you can use to rehabilitate them immediately after opposing counsel is done. For example, if opposing counsel says “Did you punch him” in an assault case and your client says “Yes,” you need to be damn sure that you’re ready to jump in with a question that makes your client’s actions sound justified. Yes, that shit has happened before.

Also, remember that opposing counsel is trying to build a record not just for trial but, as stated before, for summary fucking judgment. If your client is admitting to shit that gets them a step closer to the judgment without a trial, you need to be ready to jump in and get answers out of your client that’ll throw enough dirt on the issues of fact that the judge decides to pass it on to a jury. Don’t assume you’ll get your chance at trial. Being asleep at the switch in a depo can make it damn sure that there won’t be a trial.

Don’t Give Away The Game.

Still and all, while you have to rehabilitate your witness you also need to remember another rule of depositions: Don’t ask the opposing counsel’s questions for them. Before every deposition, you need to sit the fuck down with your client and tell them these three things: “‘I don’t know’ is a valid answer, don’t guess. ‘I don’t recall’ is a valid answer, don’t guess. Listen to what they’re asking, and answer only that fucking question. If it can be answered with one word, use one word.” You also need to tell your client shit like “If I ask if you need to take a break, you need to take a fucking break.” Why is this shit important?

Because if opposing counsel doesn’t ask the right question, and it’s one that’ll come out at trial, then they won’t know about the response till trial. The less information opposing counsel gets to prepare for, the better. That also means that on rehabilitation, you only ask the questions necessary to redeem the idiot that hired you. Don’t ask anything more than is needed to make sure this asshole hasn’t sunk their case…you aren’t putting on a performance for the jury, and there’s no reason that opposing counsel should know exactly what cards you’re holding if they aren’t crafting their deposition questions in a manner that makes you show them.

Don’t Be Afraid To Object.

The reason lawyers can’t do much other than “object to form” in a deposition is so we don’t give our clients the answer to the question. However, sometimes you can get away with a little more. For example, “I’m gonna object to form on this one, and let me tell you why…” Don’t abuse the power, but opposing counsel will generally let you slide a couple times, especially if what you’re really objecting to is how they’re phrasing their question. Sometimes they may even thank you.

But there are other appropriate objections to be made. You can object to a question that calls for a legal conclusion, because we’re building a record and you can’t ask Dan the Dipshit Plumber to identify what is or isn’t “evidence” of his claim if Dan doesn’t know the rules of relevance and admissibility. Likewise, you can object to any question that’s seeking privileged information, or information that you believe should be privileged. Opposing counsel is likely to fight you on this shit though, but there are three purposes behind objections in a depositions:

  1. To clearly state your objection on the record;
  2. To break opposing counsel’s patter with your client/witness and remind everyone you guys are on opposite sides; and
  3. Sometimes…to clue your client in on a problem.

Yeah, 3 is improper. But it happens, they’re going to do it, and you should too…sparingly, and only if absolutely fucking necessary.

Get The Judge On The Phone.

You may suspect my last tip leads to a lot of fighting, and it does. My office is legendary for the screaming matches we have with opposing counsel over this shit. Which is where we have our top secret trick:

Before every deposition, I get the extension for the judge’s law clerk and send them an email telling them we may have an issue during the deposition that day. Then, when the fighting starts, if I think I’m in the right, or enough in the right that a judge may find my way, I look at opposing counsel, reach into my briefcase, and pull out my phone.

“Fine,” I say as I unfold the post-it note from my shirt pocket, “Let’s get the judge on the line.”

This is the nuclear option, and should be used sparingly. The result, though, is the parties will usually take a brief break and hold a discussion off the record as to how we can resolve this matter without involving the court. But only do this is absolutely essential, and only if you know you’ll win the argument with the judge, because otherwise you’ve blown the last card you have.


Alright, there we go, Five Deposition Defense Tips from Boozy. Now for some real talk:

Depositions are fucking mind-numbing. But they are important, both to your case and your client, and you need to treat them like they are. The laissez-faire attitude a lot of lawyers have towards depositions is disturbing, because we’re quickly moving away from the time when trials are held on civil matters at all. A deposition may be the only time your client tells their side of the story, and it will be under questioning and at the request of the party that wants them to fail. It’s your fucking job to make sure that shit turns out well.

Also, seriously, fucking upgrade from Angry Birds.