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Death by deposition

As the fourth deposition of the day started, the lawyers were all gathered around the table. Some ties had been loosened, the coffee pot was exhausted two depositions ago, and lunch was clearly never going to happen.

The new lawyer, still fidgeting nervously and trying to control his quivering voice, asked his first question: “Please state your name for the record.” Then, he started on the litany of “instructions.” We all know these instructions by heart:

• Please answer every question verbally, because the court reporter cannot write down nods or shakes of the head.
• Please wait for me to finish speaking before you answer the question, and I will do the same.
• If you need to take a break at any time, let me know and I’ll do my best to accommodate you.
• If you do not understand a question, let me know and I will rephrase it. If you answer a question, I will assume that you understood it.

When these questions were asked for the fourth time, the other lawyers in the room looked at the window, trying to determine whether injuries caused by jumping from the second floor would give them excuse to leave the interminable proceedings. It didn’t get any better from there, when the new lawyer used a near-replica of the outline that had been used for the prior three witnesses. He confirmed with this witness simple and unimportant facts stated by other witnesses. Basically, he dragged the day on longer and longer, much to the pleasure of the court reporter, who was paid by the line.

I was that nervous new lawyer, once upon a time. The depositions were not very good. First, because I doggedly chased every formality I had ever seen in a deposition. “Please state your name for the record.” Why “for the record?” Every question is for the record, and we don’t say “Please tell me what your interpretation of the fetal monitor strips at that time was, for the record.”

Also, those preliminary questions above, with the possible exception of the fourth, are typically unimportant. The deponent’s lawyer should have already given that information to the client. If not, it can be cleared up as the deposition continues.

My biggest lesson out of those depositions, though, was to listen. I’m not a natural speaker or conversationalist, but a deposition should be more like a conversation. I was wedded to my outlines, a problem I still struggle to overcome. Focusing on the next question in my outline prevented me from listening to the answer to the last question, and as a result I missed valuable opportunities for follow-up examination.

One final note — I was defending a deposition taken by a new lawyer recently, and he asked a lot of questions like this:

• Is it fair to say that you did not complain about stomach pain?
• Isn’t it correct that you started Pitocin by 8:00 p.m.?
• Do you know if your husband called his primary care physician that night?

Questions like this are dangerous because, by the time they are transcribed, it’s hard to tell what any answer means. Therefore, their utility for summary judgment, to oppose summary judgment, or for impeachment purposes is extremely limited.

The inflection of an answer at deposition may indicate that the deponent is answering the substantive part of the question (for example a “no” might mean “no, my husband did not call his primary care physician”). But when reading the transcript, a one-word answer might reflect only the preliminary part of the question (for example, a “no” might mean “no, I don’t know if my husband called his primary care physician”). Too often these questions are asked and not rephrased, even by experienced lawyers.

For all new lawyers, the best training is to watch depositions taken by other people. Also, get feedback on your depositions by having an experienced lawyer sit with you, or give them one of your recent transcripts. There’s always a way to get better.