By Martin Grayson
author, The View From the First Chair
Practice law long enough (say, more than a month), and you will end up in deposition with one or more loud, obnoxious, rude, rule-trampling, witness-coaching, usually foul-mouthed opposing counsel. This lawyer’s idea of defending a deposition—even when the deponent is not his witness—is to object to every question with long and loud complaints and protests, including explanations of what the question should have been, what the answer should be, and why everyone’s time is being wasted by your questioning.
I have noticed that, over the years, these characters seem to be diminishing in number. So, perhaps there is a new day dawning in civility and competence; then again, perhaps not. I am told by younger practitioners that these clowns are still out in force and, if anything, may be growing in number and stridency. Perhaps there is a correlation. Perhaps, like many predators, the bully tends to prey on the weak, which is how he perceives the younger, more courteous, and less experienced attorney.
So, assuming you are, in fact, polite, professional, and a bit new at the game, how do you deal with the gorilla in a tie pretending to be a lawyer?
Above all, be polite.
Do not, under any circumstances stoop to any act or word with less than scrupulous courtesy and dignity, especially so long as you are on the record. You are about to cage and subdue the ape, but you can do so only with the most gentle of techniques. Any act or sign of aggression will not only fuel the fire, it will render you weaponless. For in the battle with the uncouth, you have the high ground and the winning hand only so long as you are untouched by rancor.
Not even a mild touch of bemused sarcasm should cross your mind or your lips.
As the drama unfolds, be certain the record, i.e., the deposition transcript, has all your comments to counsel, lauding his efforts to assist his client, apologizing if all your questions are not all perfectly phrased, commenting how nice it is you all are gathered together on that day with the common purpose of seeking the truth. You might request counsel’s cooperation in that enterprise, and voice your disapproval of his methods. But do so as gently and courteously as possible. Know also, that being well prepared, staying on point and unflustered, despite counsel’s miserable behavior, is the first antidote to such behavior, and often all that is required to return the enterprise to more civil and effective territory.
Experience has taught me that when there is no payoff for the bad behavior, it tends to diminish.
At the same time, do not be dismayed if counsel’s outbursts continue, even escalate, as he realizes you will not be sidetracked into arguing over his objections. You are baiting a trap here and may even take the opportunity to help counsel paint himself into a corner. Interrupt a tirade to ask if he is instructing the witness not to answer. If so, and unless the information requested is clearly privileged, counsel will be on shaky ground indeed. Ask the court reporter to mark such instructions separately and clearly for later retrieval and move on. If there is no instruction not to answer, have the court reporter repeat the question. Occasionally, you may wish to rephrase a question for clarity and, in general, you will want your questions to be short, simple, clear, precise, and as short as possible. Did I mention your questions should be short?
If necessary, ask three short, simple questions instead of the one you might normally ask in a different setting. You are trying to establish a clear record of professional focus and dignity, and you should give the opposition no wiggle room for objections as to the form of the question.
If the deposition proceeds at this level, so be it. It may take longer than it should, but you will get your testimony.
Now, at some point, if your calm, courteous demeanor has not had the desired effect on the rampaging moose, it is time to go off the record. Ask for a word in private with counsel. Be sure you are well away from the witness and any other counsel or attendees; in other words, not just on the other side of the conference room’s glass wall. The old days when you could call the Court and expect to get a judge or a proactive law clerk on the line to set things right are gone, at least in the major metropolitan jurisdictions where most of this nonsense occurs. So, you will have to use Plan B, that you now explain to counsel as follows:
• You are going to continue the deposition, asking questions as carefully as you can.
• If counsel continues his obstructive behavior, you are going to ask him one more time to stop and let the process proceed in good faith.
• If he refuses, you are going to adjourn the deposition, and are going to bring a Motion, based on the record, and ask the judge not only to order an end to his rude, improper, and obstructive behavior, you are going to seek sanctions for the time and effort involved in the Motion as well as making counsel responsible for all costs of the continued deposition, including transcripts.
Explain to counsel you are taking this step only as a last resort. You would like everyone to get along and finish up in good order. And maybe the judge will decide counsel is acting properly and professionally and will frown on your Motion. You are willing to take that chance. But you are not willing to proceed as you have been forced to do for the past hour. Once again, request counsel’s cooperation. Ask, can we be friends and get this deposition completed and go home to our families? Smile, nod, firm handshake, pat on the back.
This tactic is 98 percent guaranteed to change the entire tone of the proceedings.
For the two percent of the cases where this does not work, you should ask a few more questions, get counsel’s ridiculous objections on the record, and then adjourn the deposition, giving the same recitation on the record that you gave counsel in private, even mentioning that your last, off-the-record, conference advised counsel you would have no choice but to take this step. At this point, it will be opposing counsel calling for an off-the-record discussion begging you not to adjourn. This assumes he realizes—as all but the most rabid do—that he has been set up and will not be treated gently by any judge who has to read this record.
It will be your choice whether or not to allow him to persuade you to continue.
You see now why it is so important to be calm, courteous, focused, and professional throughout the ordeal. You may now walk into court with clean hands and pure thoughts, presenting the judge with a clear record, registering your dismay that counsel could not resolve the matter among themselves, but pleading with the Court to let the justice system do its job as intended, which means letting you take the deposition and asking your questions in any manner you choose subject of course, to the Court’s later ruling on any legitimate objection.
You will not lose this Motion.
And, in addition to letting opposing counsel know who is in charge, and perhaps even getting some expenses reimbursed for your client, you will have educated the Court as to who is the good guy and who is the bad guy. There are, in fact, very few counsel, no matter how disturbed or incompetent, who are dumb enough to let themselves get ambushed into this position but it does occur. You will probably have carried the day and taken your deposition long before this point. But, as always, when you act with clean hands and pure intention, never hesitate to put your actions before the Court.
Righteousness in the service of the law, and your client—in addition to being its own reward—is often a great deal of fun. It is also a pleasure every once in a while to pick up a stick and smite the wicked. With great courtesy, of course.
* The author is a defense lawyer practicing in Southern California.
* Excerpt from The View From the First Chair: What Every Trial Lawyer Really Needs to Know (Martin Grayson, 2009). Copies are available here at LawyerAvenue Press. Click on Avenue Shops (blue button), and go to our bookstore.
