First depositions

It's been a while since I posted, I know.  I've had lots of ideas but not a lot of follow-through lately.  I've also been pretty busy with work.  I recently took my first depositions. 

For any GOAT readers who may not be familiar with the technical underbelly of civil litigation, a deposition is an event at which a witness gives sworn testimony as to the witness's knowledge of facts relating to the dispute.  It is rather like courtroom testimony but in a less formal setting.  It typically occurs in a conference room.  Present will be the questioning attorney, the witness and her attorney, attorneys for any other parties in the case, and a court reporter who takes down the transcript stenographically.  Often there is a videographer as well (as in Bill Clinton's infamous deposition). 

The purposes of a deposition include collecting evidence that may be of relevance to the case as well as getting a sense of what the witnesses are likely to say at trial.  If the witness subsequently does testify in trial, her sworn deposition testimony may be useful if she changes her story between deposition and trial.  From a deposition you can also learn useful information apart from the core facts themselves, such as the existence or location of documents that you might not have known about, or who attended a key meeting, or that the vice president of the company told his secretary to shred all the key memos.   An interesting feature of depositions that they are not limited by the rules that restrict certain evidence from being admissible at trial.  So you can explore to your heart's content hearsay, speculation, and other areas that would be off limits at trial.  The only area you can't pierce in a deposition is privilege, like attorney-client or doctor-patient privilege. 

So in the two depositions I took, I was the questioning attorney, which meant that I had to figure out what kind of information I wanted to get from these witnesses, prepare the documents I planned to show them and a game plan for questioning them, and then, of course, execute.  That, for me, was the scariest part.  I feel that my best strength is writing; I feel most comfortable with time to consider my words carefully and edit them before exposing them to the world.  I dreaded being on the spot, having to think on my feet, ask good questions and good follow-up questions, be aggressive and pin the witness down if she was being evasive.  I felt very exposed.  And the first witness was the CFO of a publicly traded, several-hundred-million dollar company - just a smidge intimidating. 

I don't want to offer too many specifics about the depositions, in case opposing counsel has discovered my blog.  I did get through them, though I can think of a hundred things I did wrong, that I would do differently the next time around.  Reading the transcripts was both painful and fascinating.  I was amazed at how much my personality came through.  I am friendly, and slightly goofy, and I have a tendency to anthropomorphize.  So in one of the depositions, I referred to an exhibit that we kept coming back to as "our old friend Exhibit 66."  I referred to a graph that had some bad data points in it as "wonky."  When handing the witness an exhibit with extremely small print, I said, "This one's going to make us all squinty." 

I don't know if it comes across as too informal, as unprofessional; I hope not, because I don't think I could suppress it without a personality transplant.  Being myself that way helps me relax.  It's when I'm not relaxed that I stammer, trip over my words, and have trouble forming sentences.  So I think, until someone tells me otherwise, I'll go right ahead injecting my goofy self into deposition transcripts.  I just don't know how to do it any other way.

Comments

[Ellen]

Congratulations on your depositions! They still scare the crap out of me.

[Kate]

Horray on the depos! I love that your personality came through, sometimes the best litigators aren't the mean ones or the smarmy ones, they're the ones that are true to themselves and surprise the hell out of everyone else.