By Dr. Ken Broda Bahm:
What is a photocopying machine? The following video humorously exploring that question has been making the social media rounds inside and outside the litigation world. An acted out version of a real deposition transcript, this creation of L.A. writer/director Brett Weiner recently won an award for best short film at the Dallas Film Festival. It is hilarious, both because it is verbatim from the deposition text, and because it is representative of the kinds of nonsense that can affect even well-intentioned discovery. A seven-minute view is well worth your time, and after that, I will share some thoughts on how witnesses and attorneys can avoid duplicating these problems.
While some viewers who miss or forget the introduction might assume it is a skit of some kind, but the words come exactly from the transcript without any cuts or additions. It starts on line 2 of page 280 of the file (numbered page 33 of the Paterson deposition) and goes to line 20 of page 286. It also goes on in a similar fashion, even after Brett Weiner’s reenactment ends.
If you ‘LOL’d’ during that video, it is probably out of recognition. For veterans of legal discovery, it is both familiar and absurd. And that absurdity, I’d argue, is a joint creation: a result of games being played by each of the three actors.
The Witness’s Game
If we try to take it seriously, the witness’s premise is that he cannot answer the question, “Does the Recorder’s office have photocopying machines?” because there are many kinds of machines that duplicate and he needs to know which the deposing attorney is asking about. Okay, but on face, the obvious focus of the question is, “Does the Recorder’s office have any of them?” That can be answered without getting into the precision or the mechanics of the kinds of copiers at issue. In the same vein, he can answer whether there are “cars” in the parking lot or whether there are “games” being played by some witnesses without being specific about the particular make, model, or method of either. The lesson for the witness is this:
Answer at the same level of generality as the question.
If he is asking generally about photocopiers, and you understand what that word means, then you can answer. When he gets more specific, you can get more specific as well.
The Defending Attorney’s Game
It is telling that these distinctions in copiers (“photostatic technology, xerographic technology, scanning technology”) come first, not from the witness, but from his attorney. That raises the possibility that this life-or-death struggle over the mundane comes from the attorney’s advice to demand precision. Either implicitly or explicitly, the witness seems to have gotten the message that it is his job to quibble over the obvious. At heart, the advice to be careful and precise is good advice, but it needs to be tempered with common sense. Witnesses need to learn through practice how to strike a balance, exercising care while still admitting what’s obvious and does no harm. When preparing your own witnesses, this is some good advice:
Don’t coach to the point of soliciting evasion.
By the end of your prep sessions, the witness should know to be careful and cautious, but should also know what it feels like when that care and caution begins to look evasive or just plain ridiculous.
The Deposing Attorney’s Game
Nearly anyone watching the video will probably most readily sympathize with the questioning attorney. After all, he is just trying to get an answer to a simple question. But he has his own game as well, which probably prolonged the debacle. At a certain point, you see his goal shift. When the witness asks him to explain what he means by photocopying machine, he replies, “I’m not going to do that because I want to establish on the record that you really don’t know what it is.” At that point, he wants to demonstrate the witness’s ignorance more than he wants an answer to his own question. That, along with his bluster about what the Ohio Supreme Court is going to think about all of this, just serves to rattle the witness even more and to continue the train of evasion. Of course, there may be some times when that evasion is precisely what the deposing attorney wants to demonstrate, but it’s not going to be worth it in most cases. The lesson to keep in mind is this:
Keep most of your focus on discovering information and not on demonstrating a witness’s flaw.
Any judge or juror seeing the testimony in the future will draw their own conclusion about whether the witness is being forthright and helpful, or not. For the questioner, the content and demeanor should be this: I am just trying to get a clear answer to my questions.
The bottom line need, and the one that falls most heavily on the witness, is to avoid the perception or the reality of playing games. Be careful, but answer the questions. That means meeting generality with generality, clarity with clarity, and obviousness with obviousness.
Interestingly, a few pages after the exchange dramatized in the video, the questioner asks about fax machines:
Q: Do you have any fax machines at the Recorder’s office?
A: Yes.
That’s more like it! Less entertaining, but more productive.
______
Other Posts on Depositions:
- Take a Discovery Lesson From ‘The Social Network’
- Give Your Witness a Good Foundation: A Review of “The Perfect Witness” Online Training
- Put Your Best Foot-in-Mouth Forward: Use Depo Video Powerfully
______
Image Credit: By the Author