If you practice litigation long enough you will find yourself in a deposition that does not go well. Many lawyers have tales of deposition horror stories that involve difficult witnesses, difficult attorneys, technology disasters, and outright misconduct. This post will list a few deposition horror stories for your entertainment and enjoyment. Then I'll discuss a few ways to handle these situations.[caption id="attachment_2864" align="alignright" width="273"] Hopefully you aren't deposing this guy[/caption]
Some Deposition Horror Stories
1. (Warning explicit language) Here is a transcript to one of the shortest (if not the shortest) depositions on record. In this deposition the deponent loses control after the question, "state your name." In another deposition the witness threatened to attack the deposing lawyer.
2. Justin Beiber. Good luck winning a case when your client behaves like Mr. Beiber in his depositions. (Note: summaries do not do justice. You need to watch the video if you have time.)
3. Evasive witnesses can waste your time. Unfortunately it is too common to see witnesses splitting hairs, often with the support of their lawyers.
Some of the worst deposition horror stories involve losing exhibits and preparation materials. I know more than one lawyer who has travelled to their deposition only to find that the exhibits they shipped were lost. Imagine spending hours, sometimes weeks, preparing for a deposition only to lose all of your materials. Other times lawyers have arrived at the deposition only to find they brought documents from the wrong case.
And then there is the fire drill when you discover that you have the documents for the proper case, but you forgot to bring the single most important document. You may get the document, but the extra cost added by waiting for the document to be emailed (or faxed), printed, and copied will be significant.
What to do when you find yourself in a deposition horror story
1. Prepare. Before you enter the deposition plan on what you will do if the witness decides to split hairs or conveniently forget everything. If you are unprepared for the situation it will be more difficult to handle it on the fly.
2. Let difficult witness hang themselves. Obstinate, rude, or evasive witnesses can be a great boon to your case. Although they can be frustrating at the time, keep heart. Judges and juries hate difficult witnesses. If you find yourself confronted with a difficult witness just continue to ask your questions. The witness will most likely damage their credibility beyond repair. Bill Gates's deposition is a great example. You probably will not get great admissions from a witness like this, but the damage to their credibility often will be more useful than anything they would have admitted.
3. Remember that a judge will review the transcript. If opposing counsel is misbehaving then just make sure you choose your words carefully so you fashion the transcript to make the other lawyer look as bad as possible. If you get mad and return a verbal assault then you are hurting your case. If you fight back then it will be difficult for the judge to justify sanctioning only the other side for their behavior.
4. Ask your questions, or at least attempt to ask them. You want to demonstrate that you attempted to conduct the deposition and that you asked the key questions. A bit of verbal jousting in an adversarial deposition is normal. You have to ask your important questions so you have something to use later on in the litigation.
5. Use AgileLaw. If you use AgileLaw's paperless deposition exhibit technology then you will not risk losing all your exhibits, or having to delay a deposition to scramble to find the one exhibit that you forgot. Unlike difficult adversaries, deposition horror stories that begin with "I lost all of my documents" generally do not have happy endings. With AgileLaw deposition software you can have every document for every case available with just a couple of clicks. While the technology cannot guarantee you'll have a cooperative witness, it can guarantee that you will never have to worry about losing your important documents.