The Horror of One Lawyer’s First Deposition

At the defense firm where I once worked, a lawyer’s first deposition was something akin to an initiation, complete with a complex hazing ritual. Even today, fourteen years later, it’s hard for me to think about. (Oh, the embarrassment!)

I wasn’t told about my first deposition until the last minute. The telling was done by an associate who’d been at the firm only a few years more than me but who was quite senior anyway.

“We’re going to have you do a deposition.”

“Oh, really. When?”

“Tomorrow afternoon.”

In my entire life, I’d only attended one deposition. Even though I’d been working at the firm for three months (and had worked there as a summer associate), I had only a vague notion of what went on at a deposition. Most of what I knew came from reading old transcripts.

I knew there were giant gaps in my knowledge of deposition lore. How do you start a deposition? Do you have to say any magic words? What if the other attorney objects? Which objections are important and which ones can you ignore?

That’s where the hazing came in: I was supposed to answer all these questions myself in a single afternoon. I wasn’t even working on the case in question, and the file filled boxes. The associate who assigned me the task disappeared after giving it to me, telling me only that it was a “records deposition” and that it would be “easy.” Though I knew the partner on the case, it was understood that he probably didn’t know his trusted associate had just assigned a lesser associate to work on the case. It was typical showing off, and part of the ritual: an associate dumping work onto a newer associate without the boss’s permission. I couldn’t ask the boss what to do without getting the associate who’d assigned me the task into trouble, which would have resulted in a blackballing by the entire litigation department.

I now know, of course, that a records deposition is incredibly easy. Moreover, even if I’d completely messed it up, it wouldn’t have mattered a great deal, which is why the associate was able to haze me with the assignment without fear of doing damage to the case.

The hazing ritual extended firm wide. There seemed to be no one I could ask for help. Everyone had disappeared except for the one good-spirited guy who was always in his office, chewing tobacco with his feet on the desk. I could always count on him in times of crisis. But even he didn’t help much. He explained a records deposition to me: I had to show up, get the doctor to hand over the plaintiff’s medical records, then ask him the questions necessary to make the records admissible into evidence. It was understood that I knew what those questions were. But I didn’t and was too embarrassed to say I didn’t. So I went to the firm’s library to do some research.

Before long, I had pages of questions to ask at my first deposition. That’s always been a weakness of mine: my need to over prepare, which is sometimes a blessing but undoubtedly stems from an exaggerated fear of failure. In my defense, however, I didn’t know the deposition wasn’t all that important. Call me naïve, or call me plain stupid: for all I knew, the success of the entire goddamned case rested on my shoulders.

The rest of the story is about my embarrassment. It was a big case with lots of parties, so there were five other lawyers at the deposition. The other lawyers didn’t know—because no one told them—that this was just a records deposition and I would not be asking any substantive questions. Had they known, they would have sent associates. Instead I was left to display my incompetence to a bunch of bigwig partners, who were there for the plaintiff and the other defendants in the case.

The first surprise when I arrived was that the plaintiff’s lawyer—who I’d been advised in advance was evil because, after all, she represented the plaintiff—was meeting with the doctor alone in his office. I had no idea what to make of this. My second problem was my stomach, which was doing somersaults. Why hadn’t I taken the easy path and become a Westlaw representative, a traffic law specialist, or a law professor?

Finally I got started, still unaware of how to start a deposition but allowing the court reporter to start it for me with her question: “Should I swear the witness?” Then we got underway.

I tried not to notice the way the other lawyers were smirking at my outline. When I use an outline now, I keep it off to the side, hardly paying it much attention. But that time I’d written too small and had to hold it in my hand. Though the other lawyers didn’t know it was “just a records deposition,” when I started asking questions, they figured it out pretty quickly. They may have thought that I had more to accomplish after I got the prerequisites out of the way. But just the prerequisites were taking forever.

The entire thing should have taken ten minutes. Fifteen minutes into the deposition, I was getting loud sighs from one of the lawyers. After thirty minutes, I was getting loud sighs from the entire gallery of lawyers, including all the defense lawyers who were supposedly on my side.

Finally, the plaintiff’s lawyer spoke up. “Look, I’ve got to pick up my kids from softball practice. Can’t you hurry it up?”

Want to know how inexperienced I was? When she uttered these words, I remember being hopelessly thrown off track simply because a lawyer was talking about her personal life on the record. Would I get in trouble for letting her talk? Wouldn’t this mess up the transcript one way or another? I had heard about “controlling the witness”—was I supposed to control the other lawyers too?

It was at that moment that I developed a technique that has served me well to this day: I completely ignored the other lawyers. In this instance, of course, I could have gone “off the record” and asked the other lawyers whether I’d covered what I needed, and they probably would have helped me out, especially since they wanted to get home to their families. But no brand new defense lawyer, trained to think that everyone else is aiming for his jugular, would know this in advance.

Finally, continuing to ignore the complaints, including what began to seem like shouting and rude catcalls, I finished. As they gathered up their things, the other lawyers exchanged pleasant niceties with one another. But no one would look at me. Not even the defense lawyers. They were all embarrassed by what a numskull I was.

I went back to the office and reported to the associate who’d given me the assignment, greeting him with the startling news, which I now know wasn’t startling at all, that the plaintiff’s lawyer had been meeting with the doctor in private before the deposition started.

The associate looked at me with a blank expression. “Did you ask during the deposition what they were talking about?”

I looked down at my feet. I could do that? I hadn’t known.

The next time, of course, I knew better. And no one except the other lawyers in attendance that day (I never saw them again) knew the true story of my utter incompetence. The case settled just a few months later, meaning there was no need for anyone at the firm to read the transcript and grade my performance.

They wouldn’t have been able to do it anyway. I hid all the copies of the deposition in my desk, too afraid to throw them away but too smart to let anyone find them. They remained there until I prepared to leave the firm six years later. That’s when I requested the closed file, waited anxiously for its delivery, then inserted the transcripts of my first deposition into the darkness of one of the boxes, never (I hoped) to see the light of day again.

[Like this post? It's one of many included in my book How to Feed a Lawyer (And Other Irreverent Oberservations from the Legal Underground). Details here.]

Comments

[UCL]

This story had me rolling on the floor!

It takes courage to openly talk about an experience like this. You might've looked bad at the time, but everyone knows that it wasn't your fault, and that they did the exact same thing the first time THEY deposed someone.

I am disappointed (in our profession) that you didn't have a single one of the other defense counsel stick up for you. During my first few depositions, I got jammed up a few times and other counsel (including plaintiff's counsel one time) always jumped in to help me out and save me from looking stupid.

[Beldar]

Great war story, Evan!

[Connie]

This story is a fake. The other attorneys (apparently partners according to your telling) didn't know that this was a records deposition? Senior attorneys attending a deposition without looking at the Notice of Deposition (which would have indicated the nature of the proceeding)? Apparently they attended a deposition without knowing the nature of it or even preparing for it? Nope, I'm not buying it...

[Evan]

Connie: You are welcome to your opinion, of course, but in my part of the country, a deposition notice does not have to indicate the "nature" of the deposition, except to say it's going to be a deposition. No reason to clue the other side in too soon, you see! So all deposition notices, no matter what will actually occur at the deposition, are generally titled only "Notice of Deposition." (An exception would be for a "corporate designee" deposition, in which the actual topics that will be covered must be listed.)

If you're going to try to label me a fake, there are probably other aspects of the story upon which you could hang your hat: my utter stupidity, for one. Could any lawyer who graduated magna cum laude and was the managing editor of the law review really be so stupid? In my case, I say, though with great regret, yes.

[Stephen M]

This story is a fake. The other attorneys (apparently partners according to your telling) didn't know that this was a records deposition? Senior attorneys attending a deposition without looking at the Notice of Deposition (which would have indicated the nature of the proceeding)? Apparently they attended a deposition without knowing the nature of it or even preparing for it? Nope, I'm not buying it...

I can't see why the other attorneys would have any reason to suspect that someone was using a deposition just for the records when they could have handled the entire thing with a records service.

Makes perfect sense to me as a hazing ritual.

But then I've been litigating for about twenty years ...

And, if I found myself trapped in one of these (heck, when I have found myself trapped in one of these), I'd interrupt, ask if everyone could just stipulate to the records and gotten on down the road or just taken over and handled the questions properly.

[practical paralegal]

Hey, what happened to your trusty paralegal? That person should have pulled the docs for you and could have suggested some questions to ask as well. You could have taken your paralegal along with you to the deposition to handle the documents, etc. For some young lawyers, using a paralegal as a second chair at depositions and hearings is less intimidating that taking a more experienced attorney.

I can't speak for other paralegals, but taking care of young lawyers just makes good sense to me. You guys have a bad habit of growing up to be senior partners, you know!

[Michael]

Evan,

I enjoyed your essay on hazing. I'm not an attorney. Whew! However, I'm involved in the initial phase of a MedMal suit as the plaintiff. As good as my J.D. is I know the ins & outs of this case far better, specifically the medical issues. Is there a general prohibition to my sitting second chair, questioning the defendant(s) during the deposition?

I posit this question because I studied medicine for two years before withdrawing.

You might suggest that I proffer questions to my J.D. during the deposition but I don't want to give the opposition a chance to rally while I make the suggestions.

Best,

Michael

[Sonia Vivar]

I am not an attorney, just a simple hardworking citizen facing my first deposition alone.

I had an attorney, or I should say, I have an attorney IF, I recover any money.

The day before my deposition in which I am the Plaintiff, my attorney called with good news. He had gotten me an offer of $3,000.00 on a case I had already won thru the Labor Board against Seccion Amarilla (google "seccion amarilla complaints) for unpaid commissions. My award was for $43, 680.00, but was appealed.

Seccion Amarilla which is owned by Carlos Slim, the richest man, according to Forbes, hired the Law firm of Mayer Brown for the appeal. My attorney which I will name Frick & Frack, abandoned ship when I refused the $3,000.00 settlement and left me to fend for myself, claiming I had a weak case and was lucky to get this money.

I should ask for time to find another suit to represent me, but after 2 years of nothing, I felt, I have nothing to lose. What I will gain may be more valuable than what money can buy, an insight into how wonderful it is to be able to manipulate the Law, if you have money and a GOOD attorney.

I hope to update you later with my horror story on my first deposition, that I think my out top, my gracious host.

Just call me David...as in Daid and Goliath =D

[biker364]

I am glad to hear that attorneys are also as nervous as the people who they are talking to when they are at their first deposition. I am not an attorney, but, I was at a deposition yesterday, and it was AWFUL. The lawyer kept talking in circles, jumping from one thing to another, then back again. She was miserable, throwing insults my way, and my attorney just sat there!! She even made me cry as she spoke of my dead grandma. (what does my dead grama have to do with a car accident years after she died?) I am happy to know, that I am not the first, or the last person to be nervous during one of these.