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Comments

UCL

I'm glad you gave the Skadden lawyer some credit for his objections, because his strategy is a well-recognized and meritorious one in my opinion. Depositions are very often extremely boring, especially for the defending lawyer. The only way for me to stay awake and continue paying attention in such a situation is to play the "Spot the objectionable question" game (which, of course, is our only duty at the deposition to begin with).

Carollyn Elefant

Good strategy when defending a depo. But what can a lawyer do when he's taking a depo and nods off during the deponent's answer? I observed that recently at a deposition of a couple of my witnesses a few months ago. The second scheduled depo lasted only 30 minutes - guess the attorney had to nap.

Evan

Carolyn: I have found that the lawyer who falls asleep during his own deposition is well-advised to take a vacation. Meanwhile, the proper strategy for the lawyer defending the deposition is to let his opponent sleep, then rise quietly from the table with the deponent and the court reporter. All should slip out of the room and return to their offices. Or you can do what my teachers did in high school: take a large book and slam it down with great force next to the sleeping lawyer's head. He won't appreciate it, but he won't fall asleep again either.

UCL

I would just make sure the court reporter transcribes counsel's snores, and get in at least a few pages of "Zzzzzzz" before waking him up. At trial, I would insist on presenting the snores to the jury, forcing counsel to file a motion in limine to exclude them as irrelevant and hearsay, and demanding oral argument to resolve the issue. And don't forget to appeal.

(Obviously, I hope, I'm kidding).

Evan

UCL: As you know, however, what lawyers have to say in a deposition, other than their questions, is generally not allowed to be presented to a jury. This is why lawyers often feel free to behave like such asses during depositions: They think they get a free pass. Much of the problem presented by "incivility during depositions" could be cured by simply changing this rule. Blow the blowhards up to poster size and let the jury laugh at them. Too bad it will never happen . . .

Beldar

The appropriate contraction of the firm in question's name, I believe, is "Skarps" — which sounds vaguely Klingon to me.

Texas state-court oral deposition practice changed radically in 1999. Arguments among counsel, grandiose statements "for the record," and private conferences between the witness and the lawyer presenting him for deposition were dramatically curtailed, as was the ability of counsel to instruct witnesses not to answer. Moreover, under new Rule 199.5,

"Coaching" objections and colloquy are strictly prohibited. Objections to questions during the deposition are limited to "objection: form" or "objection: leading," and objections to testimony are limited to "objection: nonresponsive." These objections are waived if not stated as phrased during the deposition. However, the witness' attorney may also instruct the witness not to answer a question is it calls for privileged information, is abusive or if any answer to the question would be misleading. The deposing party, however, may require the objecting party to give a short and concise explanation of the basis for the objection or instruction to enable them to rephrase the question. However, argumentative or suggestive objections or explanations are prohibited, waive the objection, and may be grounds for terminating the deposition.

Overall, the changes are mostly for the better; certainly they were a legitimate response to widespread abuses. However, in remembrance of Brendon Sullivan's immortal line during Ollie North's Congressional testimony, Texas lawyers refer to these as the "potted plant" rule changes — because after them, lawyers presenting witnesses might as well be. Avoiding short naps — and "protecting" the witness — is now substantially harder.

I plead guilty to an embarrassing episode of dozing off while presenting a witness last summer — no less than the chief operating officer (and co-owner) of my corporate client. I rather lamely explained to him during the break that he should view my brief nap as my comment on the ineptitude of the questioning lawyer and a demonstration of my confidence in his own ability to handle himself as a witness. Which was sorta true, but still ....

Evan

Beldar: This blog seems to becoming a confessional, which is fine with me. Anyone else willing to confess can feel free to append their confession to any post, no matter what the topic.

As for Brendan Sullivan and the potted plant, I posted about that once at: "The Exalted Profession." (The first comment is also part of the post.)

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