Friday, April 21, 2006

How not to take a deposition

This was a topic brought up on the ISBA listserv this week (with a link to this You Tube video offered by T.J. Thurston).

I can see where non-lawyers might find this clip very funny. At the risk of offending 10-year olds everywhere, the clip shows well-educated professional people acting like contentious 10-year olds on the playground. I found it all too familiar, if in an exaggerated way -- I've never actually been at a deposition that came as close to fisticuffs as this one apparently did. But, then, everything is bigger in Texas, isn't it?

The clip initially reinforced my long standing prejudice against video depositions. The video camera is light a harsh, bright light, leaving no shadows in which to hide. And that question that seemed so articulate and precise in memory, turns out, on tape, to be halting, forced, and stilted. At least court reporters will sometimes clean up my "um's" and "er's" leaving a transcript that is at least arguably consistent with optimistic recollection.

But then I thought of one deposition in which I -- admittedly -- failed to live up to the highest standards of civility. Opposing counsel had really gotten under my skin. I don't remember why. I don't remember the case. I do remember, quite clearly, the other attorney dictating in a flat monotone, enunciating very clearly so that the court reporter could not miss a single syllable. I don't remember the exact words, but the monologue went something like this: "Mr. Leyhane is raising his voice at me... I am in fear for my safety... now Mr. Leyhane is clenching and unclenching his fists, he is standing up out of his chair -- I am concerned that he is about to hit me and I am in fear for my safety...."

This only made me madder. Obviously, I did not hit the man -- anyone who knows me would confirm that I am a practicing coward and unlikely to take a swing at anyone. I don't know how the situation resolved -- but we must have got through it somehow.

In that one instance, a video record might have been helpful.

But "how not to take a deposition" involves more than just incivility. I recall a deposition a long time ago, in a construction subro case. It may have actually been my first solo effort. The witness was an architect and I asked a question that seemed alright to me, at the time. I have no idea today what my question actually was.

The witness responded, however, by asking to go off the record.

Well, I wasn't going to take that; no, sir, I was going to be aggressive and bore on ahead (bore probably being a particularly apt word choice here). So I refused to go off the record.

"Fine," the witness said, "we'll stay on the record. That was the singularly most stupid and asinine question I have ever heard in my entire life."

Of course, I'm sure I've asked lots of dumber questions in the 25 or so years since. There's always room for improvement....

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