I defended a deposition in the afternoon, yesterday. It is a small case involving commissions owed to a former salesperson for a major media company here in NYC. The deposition was taken at the offices of the defendant's attorneys located in the same building as the company. While I was waiting for my habitually late client to show, we were meeting in the lobby, I was treated to a display of young models signing in for a cattle call upstairs. All young, all trying to look young while still looking world weary and sophisticated, all bravely clutching their portfolios. Nice way to pass the time. The only thing that distracted me from the parade was the vision of the New York City tow truck towing a quarter of a million dollar new Bentley coupe. Ouch. That's gotta hurt.
Anyway, client arrives (late but not too late) and deposition commences.
The lawyer for the defendant was really pretty bad at this. She asked lots of circular questions, lots of questions attempting to restate my client's previous testimony (and by previous I mean from 5 minutes ago), lots of questions assuming facts not in evidence, lots of questions which were irrelevant and dealt not at all with the complaint or her client's affirmative defenses. I objected a lot. I was forced to. All to the form of the question. I doubt that much of what she asked will be admissible. Oh, and don't get me started on the marking of exhibits.
Well, you had to go and get me started, didn't you?
Exhibits and documents, same thing sometimes, get marked at deposition and questions are asked about them. Experienced and careful attorneys understand how crucial it is to examine on documents in such a way as to authenticate them and make them admissible for trial or for summary judgment later. Why summary judgment? Well, lots of times lawyers forget that a summary judgment motion has to be made on admissible evidence. I regularly can knock out parts of other attorneys' summary judgment motions by attacking the admissibility of the evidence. Judges love to be reminded of stuff like that. If you don't lay a foundation for the admissibility of your evidence at deposition, you are in big trouble later. You should only have to make that mistake once in your career before you never make it again.
This attorney has not had that experience, I guess. She laid no foundation for her documents. She may have some trouble later. Oh, and without a foundation, I'm going to move to strike whatever testimony she got from my witness with regard to any particular inadmissible document.
Anyway, my favorite objection of the afternoon:
Examining Attorney ("EA"): Now, is it my understanding that you did the following thing after your termination meeting?
Me: Objection, instruct the witness not to answer the question. [By the way, that instruction may not have really been totally proper, but still, I did it anyway]
EA: What! How can you instruct her not to answer? What is the basis?
Me: I thought you said you didn't want speaking objections. Now you want me to explain?
Me: Ok. Your question didn't just call for the witness to testify to the operation of another's mind, it called for her to testify to the operation of your mind! Totally improper. You want to restate the question?
EA: No. The question was fine. I want to take a break.
*break taken, EA leaves room*
Court Reporter to me: You were right. That was a totally fucked up question.
The whole deposition was kind of a waste, really. Let's just say that at the conclusion, we had some meaningful settlement talks.Posted by Random Penseur at September 21, 2005 12:59 PM | TrackBack