Monday Practice Tip- Depositions and Demeanor

Good morning all!  Welcome back to the blog.  On Mondays we provide a practice tip for young attorneys.  Like with other portions of the blog, I will sometimes invoke real scenarios to convey a tip rather than just go through the practice of law A-Z. 

Today is one of those occasions because I had a recent experience which highlighted two lessons for young attorneys relating to deposition taking and demeanor. 

I recently attended a deposition a few weeks ago in a highly contested case nearing the end of the discovery cutoff.  The attorneys had frankly just seen too much of either other by this point so the relationships had gotten to the point of “icy” at best.

I scheduled the deposition, which was of a fact witness adverse to us.  This brings us to the first lesson for depositions, which is, “To Lead or Not to Lead?”  There is a rampant misunderstanding within the profession that deposition testimony is to be handled like at trial.  That is, the party setting the deposition and take lead is conducting a “direct examination” while the opposing party responds with a “cross-examination.” 

This is untrue.  When you take a deposition, you should assume the possibility that the witness will be unavailable for trial and that the deposition will need to be read into evidence at trial.  Accordingly, before you sit down to draft your outline you should be thinking, “to lead or not to lead?”  If the witness is adverse, of course you should be leading.  You will not be calling this witness at trial, your opponent will!  On the other hand, if the deponent is a favorable witness, conduct the deposition like a direct examination.  You should of course speak with the witness in advance to prepare him or her for the fact that you will be asking questions in this manner. 

Now back to my example.  I took the deposition of this adverse witness, and was leading her as much as possible.  Not just to preserve good trial testimony but, also, of course, to shape the testimony to the form I wanted.  Leading is always preferred, it is just a manner of when you can do it. 

When I was through, my opponent started questioning.  Just to show how widespread this misconception is, my opponent is a partner at a well-regarded firm.  He immediately started leading the witness.  I objected to form, and my opponent asked, “What’s the basis for your objection?”  I responded, “It’s leading.”  My opponent laughed at me and shook his head, saying “you called her.”  He turned to his client representative, another attorney, who also laughed at me.  He gestured to the witness, an attorney, who also chuckled at me, and to the witness’s attorney, who laughed as well. 

With four attorneys in the room mocking me, you can be sure that my first instinct was to show up my opponent by explaining why he was dead wrong in his assumption that he could freely lead the witness.  That’s where lesson #2 comes in relating to demeanor, specifically the art of restraint!  Instead of reacting, I just went along making my form objections for the next hour while my opponent essentially testified for the witness.  Protecting your ego does nothing to serve your client.  Now, if this case goes to trial, if that witness is on vacation, ill or otherwise unavailable, my opponent cannot read her testimony into the record because his questioning was improper. 

See you Tuesday for a Pop Review!

Explore posts in the same categories: Practice Tips for Young Attorneys

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