I recently defended a fairly contentious deposition. To my surprise, my witness complained to me during a private meeting halfway through the deposition, “I wish you’d really give it to him. If I was a lawyer, I’d never let him (opposing counsel) get away with that.”
I was frankly surprised. While I wasn’t obstreperous, I hadn’t been a shrinking violet, either. The examining counsel had asked mostly crappy questions and my witness had been really well prepared (in my not-so-humble opinion) over the better part of two full days. I thought the deposition was going swimmingly.
I sensed that the problem, from my witness’ perspective, was that she was wounded by the way the examiner was treating her and bitter that certain facts she viewed as private (family status, country of origin, etc.) were being dragged out of her in what appeared to be a harsh, public way. She’d never been deposed before, and wasn’t used to how lawyers routinely twist and torture the meaning of a witness’ testimony. I realized it wasn’t that she felt that I wasn’t doing a technically capable job, but more that she expected any lawyer on her side to exact a pound of flesh from the examiner. After all, what else was I there for? She wanted John Wayne with a briefcase.
I told her, “I actually think you’d find it harder to concentrate, understand the questions and answer if I had really mixed it up with him.” This is based on experience. In the past, when I’ve encountered a real asshole examining my witness, or when I’ve been flabbergasted by a particularly egregious line of questions, or just had too much caffeine, I’ve turned into a real jerk. (Turns out I can portray a pretty good jerk–who knew?) I’ve always reflected afterward that, while I might have dished out some really cutting barbs, had I been a good advocate?
I certainly hadn’t improved the record. (In fact, I’ve worried after particularly hot tirades about the possibility my Mamet-esque monologue might find its way into an exhibit read by the judge.) Worse, though, I’d always felt afterwards that the additional tension caused by our dust-up exacted a psychological toll on the witness. Sure, there are people used to concentrating and communicating in abusive environments. But I’m sure the abusive environment rarely made them concentrate or communicate better than they would if those around them treated each other with respect.
At the end of the day, as I explained to my witness, what matters most is the transcript–the written record. (Unless the deposition is videotaped.) Whether I verbally punish the examining lawyer, or even make it more difficult for him to do his/her job, it’s unlikely to improve my client’s chances of prevailing, particularly if I engage counsel in a vitriolic exchange which makes it hard for anyone to think. The best revenge, I told my witness, is to win the case!