I Know I Am Winning At A Deposition When Defense Counsel Starts Barking Nonsense At Me

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Defense Counsel barking at me on the right.

We have thick skins as lawyers. I operate every day in a professional world where someone on the other side is paid to try to make me look bad or prove I am wrong or argue that I am lying to them. So, I am used to pushing my view loudly and forcefully. Sometimes, when faced with lawyers on the other side, who don’t know the case well or are unprepared or who have not prepared their clients well, the opposing lawyer’s response is to criticize me, my style, or how I am conducting a deposition. So, recently, a lawyer in a slip and fall case started talking over me and telling me all I was doing was asking leading questions and that was inappropriate in a deposition. Or, often, defense counsel will start whining that questions are asked and answered or other similar objections that while okay in court are simply silly in the deposition setting.

What is a leading question? A leading question is usually one where the answer is either yes or no. So, “The ice between cars should not be there, correct?” Answer: Yes. There is just nothing wrong with such a question. Tactically, it does not allow the witness to give a broad answer and you don’t get to hear a more general response. But, for my purposes, it allows me to know at trial I can stand up in a snow and ice case and say, the company’s own witness says the ice should not be there. Defense counsel in that case had prepped her client to try to shift all blame onto a co-defendant by saying we relied upon them for ice removal. But, when faced with the direct leading question, the answer was either yes, it’s okay for the ice to be there, which would be a ridiculous answer or no it should not be there. Allowing the witness to rattle on about how they defer to another company to evaluate dah dah dah, does not get the correct and damning answer. Now, with the leading question and answer, one defendant has crushed the co-defendant. And, you better believe that the co-defendant was going to be prepped to come in and blame this defendant. Game over. Andrew wins. Only remaining question will be the cost of ending the case for the defendants.

Often, defense counsel will threaten to file motions or end the deposition but I have never, ever, ever, seen that happen. Back in the day, when I was a New York lawyer and just before the ubiquity of cell phones, I was in a deposition watching a more senior partner defend a medical malpractice deposition. Typically, if the deposition is so contentious that a lawyer needs to call the court, you just pick up your cell phone and call. But back then, the upset lawyer wanted to use one of the phones in our law firm to call the judge. The senior partner said nope, but there is a pay phone downstairs on third avenue you can use. That is true New York style litigation.