A Potted Plant? Eh, Not So Much.

ghg6rtrTwo blawg posts last week caught my eye. Both discussed preparing and defending witnesses at deposition. At the Lawyerist, Chris Bradley talked about his experiences defending a client in his first judgment-debtor examination. His title for the piece, which I mistakenly took to be ironic, was: How To Defend A Deposition: Just Show up. The other post, by Philly Law Blog blogger Jordan Rushie, took the assignment more seriously, and provided better guidance, likely because he has more experience. In his post, Rushie credited Max Kennerly with the notion that “[i]f you prepare your witness properly [for deposition], you should be able to just be a potted plant.”

Let me say first that I’m not sure whether Max Kennerly ever made that statement. It sounds pretty good, provided you don’t, as Jordan Rushie fortunately did not, take it completely at face value. What concerns me is that young lawyers reading Bradley’s post at the Lawyerist and contemplating Kennerly’s remark, might mistakenly conclude that adequately preparing your client or witness for deposition is enough. Or nearly enough.

It’s not enough. Or nearly enough.

I agree that preparing your client or witness is surely the single most important part of your job in defending the deposition. Clients or witnesses who have never been though litigation are quite literally astonished when I suggest that we spend a half or full day preparing for their deposition. And that’s often not enough. I once spent three full days preparing a sexual harassment defendant for his deposition–and I was still unsatisfied with the result. So yes, Max Kennerly is right that witness preparation is the first priority.

But even if you spent a full week preparing the witness (yes, we do spend weeks preparing certain key witnesses, particularly if they do not speak English or the subject matter is particularly complex), your job is not done. There is your responsibility to “preserve the record” meaning making objections when questions are not technically correct. Jordan Rushie got that right.

But, in my humble view, adequately preparing the witness and interposing appropriate objections is still not enough.

My goal at every stage of the proceedings in a lawsuit is control. I’m not so naive that I think I can actually control very much. There are about a thousand things in every lawsuit that are simply beyond my control, the top of the list being the judge. But that doesn’t mean I don’t try to control every single nuance as best as I can. I’m a control freak. Control. Control. Control.

When I present a witness for his or her deposition, I am being forced to relinquish control over a very important aspect of the process. In civil litigation, at least in my experience, depositions and documents win or lose a case. There’s very little I can do about bad paper. If there’s a bad document out there and my opposition has properly asked for it, and it’s not privileged, then I’ve got to produce it and we’re stuck with the consequences.

Depositions are different. Unlike bad documents, depositions don’t just exist. A deposition is more of a process. Even when we’re done preparing and I object whenever necessary, my opponent still must ask the right question and get a damaging answer before the evidence comes into existence. That’s a big leap, and I want to make it as difficult as possible to cross that chasm. And I’m not talking here about inappropriate objections, improper instructions not to answer, or being a difficult jackass, or other ethically-challenged conduct. But I do want my opponent to know I’m listening closely, to every word, and I’m not going to make it any easier for him/her than I absolutely have to. Otherwise, what am I getting paid hundreds of dollars an hour to do? A well-trained monkey can object when questions are “vague and ambiguous.”† I think our role is bigger than that.

I learned pretty early that you want to create a “tight” environment from the start. By this, I mean that, even if I generally have an extremely cordial relationship with my opponent (and I usually do), I don’t want him or her to think that this particular deposition is going to be easy or fun. I want him or her to feel that our time on the record is “borrowed time,” that he/she is taking up my client/witness’s extremely valuable time, that we’re inconvenienced, that his/her goal should be to finish up as quickly as possible. It’s been my experience that, in most instances, this results in a shorter deposition. Shorter deposition = less chance of damaging testimony from my client/witness = a good thing.

Another way I create a “tight” environment is by interposing a fairly stiff objection early in the deposition. By early I mean in the first 20-30 minutes. This signals to my opponent that I’m listening, and that I don’t intend to put up with any baloney. I do try to avoid speaking objections, because they’re unprofessional. On the other hand, if I need to say additional words to fully state the objection or my nonspeaking objections aren’t getting anywhere, then I’ll say what needs to be said. Again, while it may be my opponent’s deposition, I’m going to retain as much control as I can.

I also want to dictate when we take breaks. At least every hour. I don’t want my witness getting fatigued, hungry, exhausted or even comfortable. When he/she gets comfortable, that’s exactly when the filters in his/her brain start to shut off and the damaging evidence is created.

I’m also not above verbally bitch-slapping scolding any opposing counsel who gets too high-handed with my client. Again, I’m not getting paid several hundreds of dollars an hour to sit back and watch some unprofessional lawyer abuse my client. I’ve come to believe that civility really is best 99.9% of the time. But, if an opponent is abusing my client with his/her examination, I have two choices: I can terminate the deposition or I can push back a bit. If I give some push back, perhaps we can alter the course and finish the deposition without bothering the judge. If I terminate the deposition, motion practice is sure to follow and this is costly, and the judge might not see things my way.

We sometimes walk a fine line when defending depositions. I don’t want to be obstructionist, or an asshole. But when we’re on the record, my job is to do everything ethically within my power to prevent that record from containing evidence that is damaging to my client’s case and/or helpful to my opposition. I respectfully disagree with the notion that this obligation is satisfied by “just showing up” or even by just making objections.

†I mean no disrespect to monkeys, trained or otherwise.

About Alex Craigie

I am an AV-Preeminent rated trial lawyer. My practice focuses on helping companies throughout Southern California resolve employment and business disputes. The words in this blog are mine alone, and do not reflect the views of the Dykema law firm or its clients. Also, these words are not intended to constitute legal advice, and reading or commenting on this blog does not create attorney-client relationship. Reach me at acraigie@dykema.com. View all posts by Alex Craigie

14 responses to “A Potted Plant? Eh, Not So Much.

  • Jordan Rushie

    Yeah, there are times you need to say to a federal judge “I instructed my witness not to answer, and I had a damn good reason why.” Knowing when to do that, and when to be a potted plant comes with experience. Just like knowing how to straddle the line between making argument in an opening statement (“But I said ‘the evidence will show!'”), or when to put something in writing.

    It all depends. And we spend a lifetime learning about the judgment call.

    Admittedly, I completely missed the mark with my post. I originally started out writing about why it all matters, everything from a routine status conference to defending a deposition, and that simply showing up isn’t enough. (until you are competent to determine what is insignificant. For instance, a case management conference in a Philadelphia state court isn’t a big deal. But a Rule 16 conference can be a very big deal). Just showing up, and not knowing what you’re showing up to, why, and how to do your job effectively does nothing but hurts your reputation, and more importantly, your client’s interests. That would have been a decent article.

    Then I wussed out, let Bradley off the hook, and wrote a half ass article about defending depositions. The post was woefully inadequate and incomplete, and has been said addressed much more throughly by better trial lawyers than myself.

    If I had to do it all over again, the theme would be this – it all matters. A routine motion to compel, a routine deposition, a settlement conference, an email to a client. You never know when it could become significant, so it is imperative you don’t just “show up” to stuff and pretend to play lawyer. The worst thing a young lawyer can do is just show up and have no idea what’s going on.

  • Mike Pospis

    One engages in most (if not all) of the conduct you describe at their peril. See e.g. FRCP 30(c)(2). Also, no competent deposing attorney would allow or be intimidated by it.

    • Alex Craigie

      You make two points and I both agree and disagree with both. You are absolutely correct that the FRCP, and the laws of most other jurisdictions, are written and intended to make discovery more open and to eliminate the “game element.” You are also correct that a lawyer defending a deposition does everything at his/her “peril.” Remember there is more than one kind of peril. There is the peril which can result if an attorney is obstructionist and materially interferes with the process. I assume you’re referring to court-ordered sanctions if the conduct came before the court. First, I’m not encouraging sanctionable behavior. Second, these issues do not come before a court as frequently as you might think–because experienced lawyers know judges don’t want to deal with bickering counsel.

      There is another kind of peril which your comment seems to completely overlook. That is the peril which results when bad questions go unchecked and lead to bad answers which amounts to bad evidence which can lose a case, which ultimately can lose a client. Because I live in the real world I recognize that our job–part of why we’re [some of us] well-compensated–requires us sometimes to balance the perils and make judgment calls on the fly. My clients know I’m looking out for them first.

      Your second point suggests you misread the post. I’m not advocating or encouraging any kind of intimidation. If you’ve read other posts I’ve written you’ll notice that I really do advocate that counsel treat each other at all times professionally and with respect. Unfortunately, my opposition is not always so professional. When that happens, I view my job not only as a counselor of law but as a defender of my client, including his/her case and his/her psyche.

      • Mike Pospis

        You’re missing the point. You seem to believe that the primary function of an attorney defending a deposition is to keep testimony that hurts you (and/or helps the other side) out of the record. That’s not how depositions (are supposed to) work, at least under the federal and NY rules (d/k re CA). Sometimes witnesses say the wrong thing; sometimes they ignore the prep and, with one answer, torpedo the entire case. All I am saying is that the rules significantly limit your ability to prevent that from happening (during the deposition anyway).

        As to your last point, perhaps “intimidation” wasn’t the ideal word. How would you describe trying to exercise “control” by (for example) “verbally bitch-slapping” opposing counsel?

      • Alex Craigie

        I’m not missing the point. We just disagree. I do not believe our role as advocates starts and stops with an expansive reading of the limits imposed by the FRCP. I’m not inviting anyone to break the law or behave unethically. I’m pointing out that defending a deposition often requires more than just careful witness preparation and preserving the record with the occasional objection.

  • How to Defend a Deposition: Just Show Up

    […] to depositions than that. To some, like Alex Craigie, who wrote a useful post refuting the idea of the lawyer as potted plant at a deposition, there’s a whole truckload more. And Jordan Rushie weighed in earlier with how dangerous it […]

  • Max Kennerly

    Nice post. My original post was indeed focused on the value of preparation, with additional remarks on the amateurish technique of “controlling” a deposition by trying to coach the witness with obnoxious side remarks and meritless speaking objections, a technique that, quite rightly, can get you sanctioned. I see way too many lawyers defend depositions by acting like a fool at the deposition, rather than by properly preparing the client in advance and then ensuring the deposition proceeds in the manner most advantageous to the client.

    You obviously mean “control” of a much more real, effective, and professional sense. My own method is probably more subdued than your method. I certainly agree with the need to maintain control, and quite frankly I’m invigorated at a deposition when opposing counsel tries to test their boundaries, but on the whole I don’t try to create the impression that I am controlling the litigation. Rather, I try to create the impression that the litigation is on an inevitable course towards my client’s victory, no matter what my opponent does, and no matter what I do.

    “A line will take us hours maybe;
    Yet if it does not seem a moment’s thought,
    Our stitching and unstitching has been naught.”
    —William Butler Yeats

    • Alex Craigie

      I apologize if it sounded like I was advocating a heavy-handed approach. I like: “I try to create the impression that the litigation is on an inevitable course towards my client’s victory, no matter what my opponent does, and no matter what I do.”

  • It All Matters | Philly Law Blog

    […] up writing a sort of incomplete, half-assed blog post about how to defend depositions. Alex Craigie was kind enough to remind me that my summary was inadequate with some tips of his own. Scott Greenfield mentioned the […]

  • Preparing Your Witness For A “Reptile” Deposition | At Counsel Table

    […] get boxed in by questions that leave out the weighing of risks and benefits. Remember I generally take an “activist” role in defending depositions, which means I will do everything within my (albeit limited) power to prevent my witness from being […]

  • Julie

    I found this immensely helpful. As a sort of young lawyer who has never defended a dep (until tomorrow morning at 9am). Thanks!

  • How Does A Lawyer Prepare To Take A Deposition? | Litigation & Trial Lawyer Blog

    […] like a fool at the deposition and interposing speaking objections. Others, like Jordan Rushie and Alex Craigie, have their own thoughts. (See my comment to Craigie’s post — our views are not so different […]

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