[Editor’s Note: If you’re looking for my guide on defending depositions, it’s here.]
Yesterday Chris Bradley wrote a piece about how to defend a deposition. Advice? Just show up. Maybe wear a suit. And if you feel like it make an objection, but do it in a really lawyerly way. The other side will respect the fact that you’re there and put on a suit, and won’t take advantage of your witness.
Errr… not so fast…
When it comes to clients, it takes more than just showing up and wearing a suit. What bothered me about this particular article is Chris decided to fake it with real clients. See, Sybil Dunlop wrote a piece last week about her “motion in lemonade“, which was funny. Why was it funny? Because it’s okay to mess up or puff yourself up before a lawyer who is supervising you. You’ll look dumb, but it won’t hurt anything except your ego.
However, that logic does not apply when you’re the attorney in charge. It is not okay to be a pretend lawyer with it comes to clients.
You are either competent to handle an issue or you’re not. In Chris’s case, he may not have been competent to handle the issue but went ahead and decided to go ahead and fake it anyway, thinking that “showing up” was enough to do his client right.
That can get you into trouble. Because you know what’s worse than making a big mistake in a deposition? Making that mistake because your lawyer didn’t give you good advice. That can get both you, and your client, into serious trouble.
Showing up is never enough, especially when it comes to defending depositions.
So, let’s take a look at why this is awful, awful advice to a young lawyer. Because depositions are very, very important.
What is a deposition?
A deposition is not a buch of lawyers getting together to talk about feelings.
A deposition is an examination that is under oath. It does not take place in a courtroom before a judge, however. It usually takes place
at Starbucks in your conference room with a court reporter. The rules of evidence are typically relaxed to only include privilege and “form objections”, meaning a lawyer defending the deposition can only object if the question is confusing or will result in a breach of a privilege. If the question is just confusing, the lawyer taking the deposition may rephrase the question. The lawyer defending the deposition can only instruct the witness not to answer the question if it will divulge privileged information, trade secrets, or violate a court order. This means you normally won’t see “Objection – (hearsay, relevance, foundation, etc)” unless it’s a trial deposition.
The courts, particularly federal courts, have clamped down on coaching witnesses through standing objections. Meaning a lawyer may only say “Objection to the form of the question”, and the witness can try to answer it. A lawyer may not say “Objection. The witness already testified that the light was red. She said it three times. You’ve already asked that question, and if you ask it again, she is going to tell you that the light was read. Clearly, her testimony is that the light was red. Okay, go ahead and ask the question.” A “standing objection” often impermissibly tells the witness how to answer the question.
Courts are clamping down, since they are tired of depositions looking like this:
Because of the way depositions are structured, lawyers have a great deal of latitude in depositions without having to worry about saying something that will come off poorly to a jury. A great deal of information can be uncovered by a deposition.
When taking my first deposition, my boss James gave me some advice: “Be inquisitive. Um, really inquisitive.” A deposition is one of the most powerful tools a lawyer has at his or her disposal.
They are not to be taken lightly.
So… if I’m defending the deposition, why can’t I just show up and look lawyerly?
Because as an attorney, you have two roles. Attorney and counselor. This is my view, take it for what it’s worth…
First, and most importantly, your major role is preparing your witness. 99% of defending a deposition properly is the preparation. If you prepare your witness properly, you should be able to just be a potted plant, to borrow a line from Max Kennerly. So how do you do that?
As a counselor, one of your roles is to ensure that your client tells the truth. If your client says “The light was red, but it will help my case if I say it was green, so I’m going to say it was green” you cannot let that happen. It is imperative that your client understands that this examination is a proceeding under oath, and that perjury is a crime. If your client insists on perjuring themselves, consider withdrawing from representing that client. Do not elicit testimony that you know is false – if you do that, you’re putting your own law license and worse on the line. It is imperative that you know the case, warts and all, and explain to your client that they must testify truthfully, and you will not allow testimony that is perjured.
What Chris recommended – just showing up blind to the deposition – is very dangerous for this reason (and many other reasons). Typically during litigation, the parties have exchanged documents. As counselor, it is imperative that you have reviewed the documents that were exchanged, and that your witness does not testify inconsistent with them. For instance, if the examining attorney asks “Do you have any bank accounts?” and your client says “No”, they are going to be in a heap of trouble when the examining attorney says “Then what is this statement from Bank of America I am holding?” Before hand, it’s important you are familiar with documents that were exchanged.
It also bears noting that states like Pennsylvania confer a limited, qualified privilege to withhold documents that pertain to surveillance until after the deposition. Morganti v. Ace Tire & Parts, Inc., 2004 Pa. Dist. & Cnty. Dec. LEXIS 270 (Pa. County Ct. 2004). This means you may want to review your client’s social media pages with them before the deposition.
That said, there are good ways and bad ways to testify. This is called “polishing testimony.” Let’s say the attorney doing the examination says “Why did you leave your job?” A bad answer is “Ugh, they made me start at 9am, which is like so early, and the guy across the hall from me ate this smelly Indian food for lunch, it was like, so distressing.” A better answer is “I wasn’t happy with the atmosphere.” You are not instructing your client to lie, but simply to convey a thought in a way that isn’t offensive or, well, stupid. It’s important that you counsel your client how to answer questions directly, truthfully, and in a way that expresses the thought in a way that makes sense, and doesn’t detract from the issue at hand.
Similarly, if the question is “What did you eat for breakfast this morning?”, there is no need to answer “Well, I woke up this morning super hungry. I was kind of stoned last night, you know? So yeah I went in my kitchen and all the milk was bad… no cereal for me! So I headed downtown to WaWa but they were all out of sausage biscuits. So I got a cheese biscuit, and it was terrible. Have you ever tried one of those?” Simply answer the question, no more, no less – “I had a cheese biscuit.” It is your goal to teach the client how to answer questions directly.
In the same vein, your client also has to learn that losing their cool will only hurt their case. How would you like this to be played before a jury?
Finally, a deposition can have ramifications in other contexts. If your client is going to testify that he or she committed a crime, you should consider referring your client to criminal defense counsel to advise whether taking the 5th Amendment is advisable. Sometimes in a civil proceeding, it is better to plead the 5th than incriminate yourself under oath. Your client has to understand that a copy of this transcript can, and may be forwarded to appropriate authorities. Again, keep in mind that a deposition is testimony under oath. Bill Clinton lost his law license for lying in a deposition. What is said in a deposition can have very serious ramifications for your client. It is your duty to counsel them about those ramifications.
Chris writes that:
But that wasn’t front and center at the time. Front and center was the document on my desk, a “Notice to Take Oral Deposition in Aid of Execution,” which basically means opposing counsel would ask some questions, the answers to which might help him collect on the default judgment.
Was opposing counsel kind enough to tell Chris what he was going to ask before hand, and why?
Hell no. You have no idea what questions the other side is asking, and why they are asking that. The others side has no obligation to tell you what they are going to ask about before hand. In other words, the deposition might be under the guise of one thing in order to get information about another thing. It’s your role to try and figure that out, and if appropriate, to stop it from happening. You may be defending a case involving child support, but the other side is trying to use the deposition to build a case for defamation. It’s your role to evaluate these things.
In my own practice, I have created a guide about how to testify in a deposition. I give a copy of this guide to my witnesses before the deposition, and we go through it in great length before the deposition.
You never, ever ever just walk into a deposition without having done appropriate preparation.
Now you’re at the deposition itself. Your witness is well prepared. She knows not to ramble about her breakfast, and how to convey thoughts in a way that is appropriate.
Does this mean you can sit on your iPhone and play Angry Birds? No.
First you need to figure out what type of objections are permissible. They vary from state to state, and even in local District Courts. If standing objections are permissible in your jurisdiction, you may want to consider using them. However, if your’e in a federal court, you’re probably smart enough to know that standing objections can get you sanctioned, or worse.
Once you know that, you have to listen for instances when you should instruct your client not to answer. This will normally be limited to divulging a privilege (“What did your attorney tell you?”), violating a court order (“Joe, I’m going to instruct the witness not to answer. We have a protective order limiting the testimony to the issue of the forum selection clause. I am not going to allow any testimony outside of that.”) or divulging a trade secret. (“What ingredients go into making Colonel Sander’s Original Recipe?”). If you instruct your witness not to answer, you had better be sure to have a basis for doing so when the examining party files a motion to compel. “Your Honor, some very damaging testimony was about to come out which would have hurt my case…” will get you sanctioned.
You also need to know the procedure, which can be court specific. In some jurisdictions you can call the judge and get a ruling on the spot. In other jurisdictions, you need to file a motion to compel, and have a do-over.
After, your duty is to evaluate the testimony and the witnesses. If your own client came off poorly in the deposition, it’s your role to explain that the testimony may not look good before a jury. Check out Bill Gates:
I can only hope his lawyers saw that deposition and said “I’m not sure I want to put you on before a jury. This came off very poorly.”
You also have to figure out if you want to put on your best case at the deposition and what you want to save for trial. If you’re certain the case is going to trial and isn’t going to settle, you as the lawyer need to make strategic determinations to hold back on certain things. On the other hand, if you think the case could settle, it might make sense to show the other side your hand.
It depends on the circumstances. You’re the Chessmaster, and your client is the king.
Finally, when you defend a deposition, what is the scope of your engagement? Do you have to enter your appearance (meaning you are on the hook for the entire case) in order to properly appear at the deposition? Can you limit your engagement to just the deposition? In most jurisdictions, you have to enter your appearance in some form to be able to say anything at a deposition. Be sure that you understand, and your client understands, what your role is and what it is not. You can’t just show up to depositions and start making objections because you feel like it. It doesn’t work like that.
This is a very short, not very comprehensive guide. Personally, I took an intensive NITA course on depositions, which lasted about a week. If you’re going into civil litigation, I recommend taking an intensive CLE on the subject. There are many books written about taking and defending depositions (none of which advise you to just show up and maybe say stuff).
The best advice I can give you? You can’t just show up. That will get you into trouble, and more importantly, your client into trouble. If you’re on your own, sit down with an older attorney and rack their brain about how to properly defend a civil deposition. And if you’re not competent to do such a thing, refer the case to someone who is. Otherwise, you might end up doing more harm than good to your client.
And just for the heck of it… sometimes it all just goes very, very very wrong: