My first deposition was a disaster. I realized that about 20 minutes into it, although I should have known it right at the outset. Hell, I should have known it much earlier… because it all went wrong starting with the preparation.
I had been in practice for a little over a year. At one point, my boss James had asked if I would be up to take my first deposition on my own. Awesome. I told him I would be, and I’m thrilled to be taking on more responsibility. James told me to read the rules carefully, read some old transcripts, and to come to him with questions. He stressed how important the preparation was. “People think that they can just wing it at depositions, but I don’t. Maybe I’m just not that smart. I think you should come up with a spreadsheet of permissible objections, because opposing counsel has a reputation for being both a good litigator and a ballbuster. He’s going to test you.”
Unfortunately, I got busy. Looks like the preparation would have to be condensed. I had sat in on a few depositions so I knew the drill, or so I thought. The night before the deposition, I read a few other deposition transcripts and came up with an outline. Depositions didn’t look like rocket science from reading old transcripts. You ask questions. How hard can that be? I knew the facts of the case and had an idea of what we wanted to get out of this witness. Maybe I should discuss it with James, but he’s always so critical of me. Best avoid James’s criticism.
Whatever, I got this…
That morning, opposing had counsel sized me up instantly when I walked through the door. Fresh haircut and a pressed suit that practically had the tag on it. He knew I was a baby lawyer. Hopefully he’d be nice and pick up that this was my first deposition.
We made pleasantries for a few minutes. Yeah, great Eagles game, yeah riding SEPTA is terrible, yeah the weather. Alright, seems like a decent guy…
Then the room went quiet. Everyone was looking at me. Opposing counsel broke the silence:
“Usual stipulations?”, counsel asked.
“Uh, yeah, sure.” Whatever that means. Just play it cool, he thinks you’re a real lawyer. You can do this, Jordan. Oh God, can he hear my voice cracking? Can he see the sweat on my brow? Deep breath.
The court reporter swore the witness in and the deposition began. I started sweating more and my throat felt parched.
I began by mimicking some of the introductory questions from the old transcripts.“You’re under oath, and you understand that, right? Are you on any drugs today? Is there any reason you can’t testify truthfully?” Okay, I still sound like a real lawyer. Good.
Then we got into the meat and bones of it. Unfortunately, opposing counsel could sense my weakness. He could smell it. He was feeding off it, and he was going to take full advantage of it. Every time I tried to ask a question, there would be a flurry of objections: “Objection to the form! The witness has already answered that question! Further, you’re assuming facts not into evidence, and it calls for hearsay!” At one point, he threatened to call the judge and ask for sanctions if I continued down a line of questioning.
Can he do that? Is that legit? I think these questions are fair, but I’d hate to get the judge involved… I must be asking the questions wrong. Oh God, I’m so green, I have no idea what I’m doing. And they all know it, too. The court reporter, opposing counsel, and the witness. And what’s worse, now the witness is treating me like I’m an idiot. He practically told me my last question was stupid. He chuckled when I asked it.” I started turning red and became visibly frustrated. Why is he doing this to me? Is he some sort of sadistic asshole?
What had seemed so simple last night — ask lots of questions — suddenly didn’t seem so simple. I just wanted to be out of there. I had no idea what was permissible and what was not permissible, what kinds of questions I could ask and what would make a judge angry.
I cut my questioning short. Time to knock off and have a drink after that…
A few weeks later I got an email from James:
“Jordan: I reviewed the Smith deposition transcript. I would appreciate an hour of your time to discuss it. Please mark my organizer with a time you are available this week. Thanks. James.”
James’s emails were always so short and to the point. I could never tell if he was pissed off or if he just wanted to bounce around an idea. Hopefully the latter. I went to see him to discuss…
“Sit down, Jordan. Do you want this American-style or German-style?”
“Well, I don’t really care what you want. What the hell is with this deposition? It was awful! If I had known you were going to do this bad a job I never would have sent you. This is just… terrible. Bad. And that’s putting it mildly. What happened?”
I was angry. I felt like I had been taken advantage of by an older lawyer with more experience who was a jerk. How could he do this to me?
“James, opposing counsel railroaded me. He was such an asshole. Pardon my French, but a real fucking asshole. I was so nervous and he wouldn’t shut up with objections. Can you believe that? Maybe we should move for sanctions. He screwed me.”
It felt so good to vent. I had been wronged, but we would make it right.
“Oh, I see. It’s all opposing counsel’s fault…”
“Yes! He’s such an asshole.”
James went silent, and then looked at me. His face turned to that of pure and utter disgust, and his demeanor turned to angry.
“Actually”, James said, raising his voice, “it’s your fault. You didn’t read the rules. You had no idea what you were doing, and I can tell from reading the transcript. For instance, you agreed to the usual stipulations, but then he’s objecting on page 27 that you’re ‘assuming facts not in evidence.’ There are standing objections all over the place. On page 33 he’s objecting to hearsay. Hearsay? You didn’t call him on that? You agreed to reserve all objections for trial, but then you let him get away with a hearsay objection? In a discovery deposition! I would ask you why you didn’t stand up to this clown, but from reading this, I don’t think you could have — you had no idea what was going on. Did you bother to read the rules? Do you even know what the usual stipulations are? Did you make a spreadsheet like I told you to?”
“Errr, not exactly. I read the old transcripts you gave me. I saw ‘usual stipulations’, but didn’t know what it meant. I thought everyone just said that.”
“And you didn’t come and ask me what it meant?”
“So let me get this straight. You didn’t read the rules and you didn’t ask me anything. You just glanced at a few old transcripts the night before and thought it would be fine. In your first deposition. Who needs to know the rules, right?
What were you thinking?”
“I thought… I just… I don’t know… I’ve seen a few before… I’d just go with the flow, I guess… ask questions… but James, opposing counsel knew I was young, he shouldn’t have been such an asshole! I bet he knew this was my first deposition!”
“Am I supposed to be impressed with that?
How dare you blame someone else for your shortcomings. I don’t give a shit if this is your first deposition or your thousandth. Opposing counsel did what he was supposed to do. You did not, and you’re sitting in my office sniveling like a whining baby, acting like it’s his fault when its yours. You were too big of a wuss to stand up to him because you didn’t know the rules well enough to do it. You’re complaining that he wasn’t nice enough to you, and that he should have been gentle because you’re young. To me that suggests you’re complaining that he didn’t accommodate you. That’s pathetic. Pathetic! It falls on you to prepare appropriately for these things, and no excuse for failure is acceptable. Period.
Older lawyers have no obligation to be nice to you just because you’re young – it falls on you to get up to speed to do your job competently.
Think about this – is opposing counsel supposed to go back to his client and say “I could have kept out important testimony because the kid on the other side had no idea what he was doing, but that would have been mean of me so I didn’t do it”? How could he go back to his client with that? This isn’t about being the nicest guy in the room, it’s about winning football games. It’s about advocating for your clients. The process is “adversarial.” If you expect people to be nice to you, do something else. Because you’re not going to find that in law. And I’m not saying you should never grant an extension or a professional courtesy, but your goal is to win the case – not to make friends.
Blaming your adversary for your lack of preparation shows poor judgment and the wrong attitude on your part. We’re here to represent clients, not to make friends. Make friends on the weekend!
Kid, you’ve got a lot of growing up to do. And if you ever come into my office again and blame opposing counsel, or anyone, for not being “nice” to you because you’re a young lawyer, you are not going to have a job here. I expect you to get up to speed on every assignment and every task, and to be a competent lawyer like you are supposed to.
Now get out of my office. We’ll discuss the mechanics of a deposition later, but I’m too disgusted with you to continue this conversation.
And next time you come to my office, come back as a man, not a child. This isn’t a daycare, it’s a place of business. I’m not here to babysit you.”
After that tongue lashing, I would never “just wing” any proceeding ever again.
I would also never expect anyone — especially not opposing counsel — to be “nice” to me. Even though I’m young. At the end of the day, a lawyer’s job is to win. That goes for everyone. Making friends and being nice would be reserved for the weekends…