It’s all about what takes place behind the scenes.
January 20, 2015
NO ONE LIKES SOMEONE meddling in his business, which is why depositions can be so much fun. In real life little is more tedious in the practice of law than taking a deposition. To do it right, the attorney has to spend many hours preparing, and he realizes the likelihood of any startling “aha” moment is slim to none. It is about like watching paint dry, but it is necessary in order to lock a witness into a particular version of his story. Once the witness has testified about the facts at a deposition, he looks bad if he later changes his tune at trial. If he crawfishes, he creates one of those “Were you lying then, or are you lying now?” type situations.
A deposition, by the way, is nothing more than a sworn interview. It can be videoed, but most aren’t. Usually the attorney representing one party will take the deposition of another party or of a fact witness. In the case of expert witnesses, an attorney will sometimes take the deposition of his own expert to avoid the expense of bringing the expert to testify live at the trial.
One of the hardest and potentially most fun depositions to take is that of what is called the “corporate representative.” This is the spokesperson for a corporation, since a corporation can’t do its own talking. In federal court this is known as a “30 b 6” depo, in reference to the federal rule of procedure that controls such a deposition. The “corporate rep” is supposed to be the person from the company who knows the most about the issues in question and has the authority to speak for the company.
OK, I understand that everyone wants a deposition to be where the atomic bomb explodes, where a witness comes out with some unexpected, damaging testimony that wins the case for the other side and slays the party that is evil incarnate. The higher the stakes are in a case, the less likely that anything like that will happen. So if you want your scene to be realistic, you should concentrate on the drama behind the cameras rather than on the questions and answers.
In years past, lawyers often engaged in gamesmanship at depos. So much so, in fact that the powers that be changed the rules so that now in most settings all the lawyer who is defending the depos can say is “objection form” or “leading.” However, many lawyers try to push the envelope on this and help their witness through the toughest parts.
For instance: “Mr. Jones, you are the corporate rep of ABC company, correct?”
Mr. Jones: “That’s right.”
“Isn’t it true, Mr. Jones, that ABC company received thousands of complaints about its widgets in the six-month period before the accident that injured the plaintff?”
Attorney for ABC company: “Objection. This question is vague and ambiguous. You haven’t defined ‘reported’ so that it is impossible for Mr. Jones to know how to answer the question. Do you mean phone call reports, on-line reports, complaints filed at ABC stores, or what?”
Attorney for the plaintiff: “Yes. Please answer the question, Mr. Jones.”
At which point Jones will say something like, “I can’t really answer that question because you haven’t defined the word ‘report’ for me.”
And so forth and so on.
So, like I said, one technique for the writer is to focus on what goes on behind the scenes, the strategy sessions where ABC company prepares its witness, the way he shades his testimony, the pressure for the witness to perform well if he plans to advance in the company. Or focus on the preparation of the lawyer who is going to take the depo. Is he diligent, working long hours to get ready, or is he a fly by the seat of his pants guy who doesn’t do the work necessary to make the witness squirm?