by: Dr. Ken Broda Bahm
From “To Kill A Mockingbird,” all the way to “My Cousin Vinnie,” the world of cinema is filled with great trial stories. In virtually all of them, the heart of the drama is played out in a courtroom, in front of a jury, through powerful openings, closings, and witness examinations. In that context, the new movie, “The Social Network,” is an oddity. The movie, chronicling the invention and development of Facebook, along with its attendant lawsuits, is notable in the fact that it lacks a trial. Instead, the drama is played out in the depositions leading up to…spoiler alert…settlement.
In that regard, and in an age in which more than 98% of federal civil disputes never reach the point of resolution in front of a jury, that may make “The Social Network” one of the most realistic of all legal dramas. But it must have been a question that the writers and director addressed at an early stage: “how do we maintain the drama and move the story forward without the central device of a trial?” How they answered that question and created a very good movie in the process carries a few pointers about managing your message during the discovery phase of your trial.
In the movie, the deposition settings are hardly realistic: instead of a single witness answering a single attorney’s questions, the writers envisioned more of a group discussion format, where all of the parties attend and apparently feel free to make interjections like, “that’s a lie…” in the course of the questioning. That use of artistic license can serve as a major distraction to anyone who knows what a real deposition looks like. But at the same time, as the action plays out, there are a few evident “do’s” and “don’ts” for real depositions:
1. Don’t Tell the Story
The first lesson is a negative one: Don’t do what the film-makers did. In the movie, the story is told via long narrative answers to deposition questions, as witnesses labor to explain what happened and to convey how they thought and felt about it at the time. But that is a film-maker’s device, not a lawyer’s device. In real discovery, these long narrative answers just provide more grist for opposing counsel’s mill. For the deponent, the goal is not to help opposing counsel understand the story, it is instead just to answer the question.
2. Do Consider Who Attends the Deposition
In the movie, the depositions are attended by the adverse parties, and that makes for a nice dramatic setting for interpersonal conflict. This sometimes happens in the real world of discovery as well, but I’ve found that attorneys are often reluctant to encourage clients and related parties to attend the depositions they take, because that just amounts to one other factor that the deposing attorney needs to control. My own view, however, is that attorneys should consider it more often. A doctor accused of malpractice, for example, should really give some serious thought to whether to attend the Plaintiff’s deposition, for two reasons: One, because attending is probably better than reading in encouraging the doctor to become familiar with the specific claims and testimony, and the manner of the testimony; and two, because for most people, it is simply harder to lie or to shade the truth when a person who knows that it is lying or shading is in the room.
3. Do Respect the Process
In what is sure to become one of the signature scenes of the movie, the main character, Mark Zuckerberg who invented Facebook, is gazing out the window while the deposing attorney asks, “do I have your full attention?” When Zuckerberg answers “no,” the following exchange occurs:
Attorney: Okay – no. You don’t think I deserve your attention?
Mark Zuckerberg: I think if your clients want to sit on my shoulders and call themselves tall, they have the right to give it a try – but there’s no requirement that I enjoy sitting here listening to people lie. You have part of my attention – you have the minimum amount. The rest of my attention is back at the offices of Facebook, where my colleagues and I are doing things that no one in this room, including and especially your clients, are intellectually or creatively capable of doing. Did I adequately answer your condescending question?
That is enough to make everyone in the audience who has ever given, attended, or defended a deposition wince, thinking of the effect that this interchange would have if it were ever played for a jury. The bottom line is that witnesses can and often do feel animosity for the other parties, and for opposing counsel, but to let that show communicates a disrespect for the process, and that could be a direct insult to the eventual jury who may someday see and use this testimony. Witnesses must remember: you are testifying for the eventual decision-maker, not for the adverse parties or opposing counsel.
The only way that the idea of an actual jury makes an appearance in the movie is in a brief colloquy in the final scene, where a young associate who is also, somehow, “a specialist in voir dire” explains to Mr. Zuckerberg that a jury might infer the worst from some bad facts and a few leading questions. That is an important message as well, but for attorneys and witnesses in discovery, the most important take-away from The Social Network is not to treat the deposition process as social drama, but just to see it for what it is: an opportunity to get some answers on the record.