Mark Levison, The Levison Group
There is an art to taking a good deposition. Most seasoned lawyers will agree with that statement, and most non-lawyers will say, “What’s a deposition?” In fact, depositions are the heart and soul of modern American discovery, but are foreign territory to the layman and even a little strange to non-American lawyers.
A while ago, I took depositions in Sweden, but those were done by consent. The witnesses, all employees of a subsidiary of Nokia, offered their testimony voluntarily. Other than a Swedish translator and caviar brought in by my associate from the local grocery store for lunch, the depositions were pretty much “normal.” Recently I’ve been trying to secure testimony from English witnesses, but when a foreign witness demands a subpoena before being subjected to a deposition, the whole Letters Rogatory and Hague Convention rigmarole has to be navigated. The English barristers helping me have repeatedly warned that the Court will not allow “fishing expeditions.” Unfortunately, what the barristers call a “fishing expedition,” I call questions reasonably calculated to lead to the discovery of admissible evidence.
I suppose I shouldn’t be so surprised that our deposition seems so… foreign…to these foreigners. The truth is, depositions are foreign to most Americans as well. More often than not, the reactions of witnesses I am guiding through deposition procedures are similar to what I imagine their reactions might be if I had told them I was going to be their guide for a trek through the Amazonian jungle, and that they had nothing to worry about, other than a few mosquitos, Volkswagen-sized spiders, poisonous snakes and every once in a while a cute little, deadly frog.
Like most other lawyers, I caution witnesses to simply answer the questions — nothing more. Don’t volunteer information and only answer the question asked — even if you think your inquisitor may have meant to ask something else. I’m fond of telling the deponents the story of the fellow asking the desk clerk if his dog lying next to him bites. He says “No.” The fellow bends down to pet the dog which viciously bites him. Not very happy, he snaps at the desk clerk, “I thought you said your dog doesn’t bite?” The clerk shrugs and says, “That’s not my dog.” The clerk answered the question he was asked. The dog bite was not his fault! That lesson, by the way, may not be the only trial tip witnesses can learn from Peter Sellers’ movies. See the “Return of the Pink Panther.”
I recall defending a deposition of the owner of an NFL football team. He was a crusty millionaire, and being an NFL team owner, was a seasoned deponent. I told him to “listen to the question, answer the question and offer nothing.” At the end of the deposition, all lawyers were finished with their turns and a lawyer who already had his turn, wanted to ask one more question. Since the other lawyers weren’t asking additional questions, he had no right to a further round. He begged. I told him, okay, you can ask your one question. Then, trying to get as much information as he could from his “one question,” he asked a very long, multi-faceted question to which the NFL’s owner’s response was, “no” without any amplification. The red-faced lawyer, having received no useful information, screamed, “Well, in that case I need to ask other questions.” I politely told him, “Sorry.” We got up and left. In that case, I had a good witness. I’ve had plenty of bad ones.
Recently I spent an entire day in Florida preparing an English witness for his deposition. He was not my client, so I couldn’t easily suggest he be careful, so I gave him my “just answer the question” mantra. We went over the questions, he was prepared, I inquired. He did well. Then it was the other side’s turn. All of sudden the Brit wanted to be liked by everybody, and wild horses couldn’t keep him from talking. My request that he just answer the question seemed lost in translation somewhere between London and Lauderdale. In fact, the opposing lawyer couldn’t even get his question out before the eager witness began eagerly talking over him — foreign accent and all — which needless to say was giving fits to the court reporter, as well as to me. I later told my client that the witness conjured up images of an uncorked fire hydrant gushing water as fast as it could.
I remember the first deposition I ever took. The lawyer on the other side was not very seasoned, but he was a few years more experienced than me. He objected to every single question I asked. I thought he was a complete jerk. Knowing what I know now, his objections were probably appropriate. Of course, there is an art to asking a good question, and there is an art to making and dealing with objections. When lawyers object to the form of my questions, unless it is obvious why they are objecting, I ask what the objection is based upon. Once I hear the rationale, I can correct the question if I think the objection is well founded. Too many times lawyers simply ignore objections at their own peril.
In a deposition I just took, the witness said “I don’t recall” more than 100 times. Maybe some lawyers prepare witnesses by telling them if you don’t recall something, you don’t need to answer it, “wink, wink.” Refusing to answer questions may seem to a witness, or her lawyer, to be a show of strength. That tactic is rarely deemed acceptable by a judge. Not recalling in a deposition significantly limits an ability to testify months or years later at trial. Magically returning memory, may look good in the movies, but in real life they are usually the sign of the loser at trial.
Those of us that are old enough to remember the lexicon of American witnesses stricken with convenient amnesia recall the classic examples of Nixon’s attorney general, John Mitchell, who being examined in regard to the Watergate break-in and cover up, inconceivably seemed unable to recall anything when testifying in front of the Senate Watergate Committee. Sometimes I hear so many “I don’t recalls” that I wonder if those came from the prompting of lawyers, or the fact that although lay witnesses don’t know much about depositions, they have somehow, through movies, or whatever, gotten the impression that “I don’t recall” is the magic answer.
Sometimes, in an attempt to avoid answering questions, lawyers instruct witnesses not to answer on grounds other than privilege. That’s also not appropriate and it’s a pet peeve of mine. In the Swedish case, a federal judge sanctioned the opposing lawyers from San Francisco because he instructed witnesses not to answer questions that did not relate to any privilege. I remember, even today, one of their objections was, “[T]hat question is so stupid I don’t even know what to say about it; don’t answer it.” The federal judge’s answer was to send me and a court reporter, all expenses paid, back to Sweden to get answers to the eleven questions the witnesses had been instructed not to answer. The truth is the answers weren’t that important, but sometimes getting a point across in a case is.
Often avoiding answers and insisting “I don’t recall” is a good response, but a skillful advocate can use those “I don’t recalls” to their great advantage. Depositions can be dangerous things. Attorney General John Mitchell went to jail for perjury and obstruction of justice.
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Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm of Lashly & Baer. Contact Under Analysis by e-mail at comments@levisongroup.com.
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