January 20

Ask a lawyer 03: Depositions

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In this episode, Blaine Clooten invites Andrew McGuire to discuss some of the top questions coming up around Depositions


Some of the highlights they hit on are: 

If you're interested in listening to this episode, you can do so by heading over here and listening or the transcript is below for your reading pleasure.  

Enjoy the listen (or read) and we'll see you next time!


Transcript



Blaine Clooten:
This is Ask A Lawyer with Blaine Clooten and joined in studio from an undisclosed location by Andrew McGuire. Hello, Andrew.

Andrew McGuire:
Hey Blaine. Good to see you again.

Blaine Clooten:
Good to see you as well.

Andrew McGuire:
Thanks for having me.

Blaine Clooten:
A pleasure to have with us. So Andrew works with me on the fairpunishment.org website, and we introduced him last episode. We explained in the first two episodes that we're not your attorney. Andrew is not an attorney at all. He's a website expert, but I am an attorney, but I'm not your attorney. So if at the end of all this, you will have legal questions. Please contact an attorney. So Andrew, you're going to have some questions for me, right?

Andrew McGuire:
Yeah. I have a specific topic that I wanted to dig into today, because I'm very confused about a few things and I'm hoping you can help me out, Blaine.

Blaine Clooten:
Okay, shoot.

Andrew McGuire:
So the header topic for this is what is a deposition? I have lots of questions about details of that, but I don't really know what it is.

Blaine Clooten:
Okay. Well, and I did this last episode. I'm going to do it to you again because it's helpful to get your take on some things. I don't want to make you do all the heavy lifting, I'm going to come back to it. But why don't you tell me, what do you picture when you think of a deposition?

Andrew McGuire:
Yeah. And as Blain said, I'm not a lawyer, I'm basically the one in Google typing out this question and trying to get answers from the Google machine. So that's the level of understanding I have of a lot of this stuff, which is why I'm here asking Blaine. But to me, a deposition is something where someone wants more information about a specific thing that happened. And I was involved in some way or I have my view you or my take on what happened. And that's important to whoever is on the other end of the table. I used this last time, but the Suits analogy with Harvey Specter on one side of the table, they've got the video camera and they're recording me trying to see if I have different things that are visual cues or whatever it might be. But that's TV. So to me, that's a deposition. I go into a conference room, there's a lawyer on one side, I have a lawyer on my side, like what is a deposition? It's a lawyer asking me a bunch of questions and there's ramifications to my answers. Right?

Blaine Clooten:
Good. Again, your layman's explanation is pretty darn close to what reality is.

Andrew McGuire:
It's just TV shows, Blaine.

Blaine Clooten:
They're not always accurate. Okay. So we're in a civil case right now. And we talked about civil versus criminal in the last episode. Most of the cases that are going on that people see, or they're dramatized, if they're not criminal, you know, which are the fun ones from Law and Order, then they're going to be a civil case. In a civil case, we have a lot of different ways that we can gather information from the other side. And that's called discovery. Have you ever heard of discovery before?

Andrew McGuire:
Yeah. In sales cycles.

Blaine Clooten:
Oh, okay. Well define it in a sales cycle. What's discovery.

Andrew McGuire:
So discovery is asking lots of questions to understand the current situation better. So I need to know whether or not what we have to sell is going to fit the problem that you have today. Right? And uncover that.

Blaine Clooten:
Okay. So awful similar to discovery in a legal context. The difference is that what we are trying to gain are the documents or things that are related to the underlying case. And it, too, involves a lot of question asking. And so if you think about the different kind of cases that we might be in, why don't you give me a hypothetical case?

Andrew McGuire:
Hypothetical case? So a neighbor's tree is on the other side of my fence. So I have all these branches and so I cut them all off and neighbors now upset because I ruined his tree.

Blaine Clooten:
Okay. And who's suing who? Is the neighbor suing you?


Andrew McGuire:
The neighbor's suing me because it's like a hundred year old Juniper tree.

Blaine Clooten:
Oh no.

Andrew McGuire:
Yeah. And I cut off all the branches. This is hypothetical again. And now the tree is dying and it was the one of the oldest trees in the neighborhood.

Blaine Clooten:
Okay. So a lot of what they're going to be trying to get to, there's going to be probably two parts to this case. Aside from the obvious legal question about root structure and whose tree it was and whether you had the right to cut it down, those are legal questions. But the other side of this, the discovery is going to be about factual questions. So any prior conversations that you had with the neighbor, any covenants that exist running with the land. They're also going to probably try and do in investigations about prior deeds, whether any of the deeds had any easements or prior nonconforming uses or anything having to do with the land itself. And that's going to be part of the discovery or fact gathering process.

Blaine Clooten:
But especially if you've had conversations with the neighbor. And so if those were written, if they were spoken, if they were in letter form, if they're in text form, we're going to want to pull all those out. Now let's say that you're moving down the case and there's some text messages that you're refusing to turn over to the other side. And, for some reason that guy has inadvertently deleted his or he lost his phone. Let's say he lost his phone. And now they wanted the text messages from you that you were sending him. Yeah, I knew that Juniper was a hundred years old and I cut it down anyway and good riddance. I hate trees. So now they want to get your text messages and you're refusing to provide them. A deposition where you serve a subpoena duces tecum, a lot of the nomenclature that we use in the legal profession is Latin. Don't ask me why. But lawyers love Latin. They love to say Latin phrases. And then pretend like they know what it means. Sometimes they have a rough idea. But a subpoena duces tecum is Latin for, bring this stuff. that's not really what it means, but that's what it means for your purposes.

Blaine Clooten:
So if they serve you a subpoena duces tecum and tell you bring those text messages to the deposition, and then at the deposition, they're going to ask you other questions. They're going to say-

Andrew McGuire:
So hold, hold on, hold on, hold on. Time out. Do you legally have to give a deposition or can I refuse to give a deposition?


Blaine Clooten:
Well, let's look at what would happen if you don't show up to the deposition in this case. In the case where you are the defendant and the other person's the plaintiff and you refuse to show up to the deposition, then the other side is going to take action against you and take a default judgment. So whether that means they're going to move to strike your pleadings because you're in nonconformance with the subpoena or they file a contempt of court against you for non-compliance and then ask to strike your pleadings or ask for a default judgment, because you're not compliant with the rules of procedure. In general, if you refuse to comply with a case where you're the defendant, you're just going to lose and then you're going to owe whatever money damages they're requesting and you may end up owing attorney fees. Because you're refusing to cooperate. So what's the other situation where you're just a witness?

Andrew McGuire:
No, just I'm wondering, you answered it though. I was going to ask you, can I just walk out of a deposition? But that's the same as basically refusing or not showing up. Right?

Blaine Clooten:
Well, that could be different. Walking out of a deposition, again, it depends. So in the hypothetical, where you're the defendant and you're not just a witness. So let's just that there's another neighbor that's a witness that watched you cut down the hundred year old Juniper. Okay?

Andrew McGuire:
Yeah.

Blaine Clooten:
And they either don't want to appear or they want to walk out of the deposition. It kind of depends on who they're friends with, because if they refuse to comply with the court's order, which a deposition is a court order, it says a request for a deposition, but it's really a demand. If they're non-compliant with that order, then negative consequences can happen for you. Because maybe they have good information about that it was not intentional or that you thought it was on your property, or you had the right to cut it down on your side or some sort of defense that your attorney wants to talk about. Not saying that those are defenses, but talk to your attorney. And so let's say you want to walk out of the deposition. Why would you be walking out of a deposition? Are they asking you really intrusive questions or are you just sick and tired of it or what's going on?

Andrew McGuire:
That's your point, right? It depends.

Blaine Clooten:
Yes.

Andrew McGuire:
So I'm either upset about a specific question that I don't want to answer, or somehow it veered off into my personal life. And I just don't want to answer any of these questions anymore, which is basically just not showing up or refusing. Refusing to give a deposition and walking out are the same if it's, I'm not answering that question, I'm out of here.

Blaine Clooten:
Well, no, that's, they're not the same because you have shown up. So, there's a difference between showing up and then how you answer at that point and what happens and the course of the deposition versus just refusing to comply with the court order, refusing to show up. Those are two different actions. But let's talk about it. If they're asking you super personal questions and we can just invent a question about history of sexual transmissible diseases during the Juniper tree inquiry, those are probably not relevant.

Andrew McGuire:
Yeah. Those are not relevant, but it could be. Because where I was going with it is if there's some other underlying thing that this neighbor has against me that, trying to get into about the Juniper, but really that's just the Trojan horse to get me in to talk about this other thing that they want to talk about. That's basically ... Where I was going with, like what are tricky deposition questions that lawyers ask? And I know those are two different things, but to me it's all related because I show up, I am trying to comply, I somehow get twisted into asking different questions or they're asking me questions on a different topic. And then I walk out.

Blaine Clooten:
Okay. So tricky deposition questions and walking out. Let's first, just take a step back and talk about we're in the deposition. The deposition is a process of gathering discoverable materials. So it's another phase in the discovery process is deposition. Now they want to ask you tricky question questions, I suppose, which may or may not happen because at the root of what the other attorney is trying to get to is discoverable material. And they're either trying to get you to answer a question that doesn't incriminate you, but it proves the underlying allegations of their case. So whether they ask you a question and it's worded in a slightly unusual way, then you would ask for clarification. If they ask you, and it sounds like a double negative lawyer speak, then you would ask for clarification. If you don't understand, you say, you don't understand.

Blaine Clooten:
If they are asking you questions quickly and you're answering quickly, then that's a good way to get caught up. And those questions can kind of become tricky. But what you do in that scenario is you slow yourself down and they cannot move on to the next question until you've answered the last question. And if they say, can you hurry up or whatever you can just say, it's important that I'm answering these questions fully and correctly and so I just need a minute to make sure my thoughts are all complete before answering that question.

Andrew McGuire:
What's interesting about what you just described there, I immediately started thinking about Oregon Ducks football team because their offense of how they quickly get to the line and get those plays off is throwing the defense off. Right? So if I'm going to continue to do the Chip Kelly offense and try and get the team at the line, move on and you're getting yardage, right? So if you have someone on the other end of the table answering these questions quickly, without realizing, Hey, no, stop time out. Like take an actual time out to slow it down. I don't know why that popped in my head, but that's what I was thinking about was football.

Blaine Clooten:
Well, it's a good analogy and well, Chip Kelly's offense didn't work at the pro level. So it wouldn't work at a pro level with a good attorney that's prepared their client for what to expect in a deposition. And before any a client goes into a deposition, we give them a letter that says what to expect during a deposition. Very carefully worded, obviously.

Blaine Clooten:
But another thing to keep in mind, as you're thinking about deposition questions is if you have to answer a question a certain way, if they box you in, it feels like to an answer that you don't want to give the answer to, you still have to answer. You have to answer truthfully, but you can write that question down. If you didn't get a full chance to explain it, and you can circle back to it. You can use your own attorney to rehabilitate you and get a chance to more fully explain what was going on, why you answered it in the way that you did.

Blaine Clooten:
An important thing to do is not to get upset. You have to expect that they're going to be asking personal questions as this case is going along. And especially, I know you gave the hypothetical of the Juniper tree, but you can imagine that if it's a family law custody divorce case, that the questions are going to get very, very personal and they're going to be intimidating and it's going to feel uncomfortable. And at that point, you need to take your deep breath, make sure that you're answering the questions correctly and rely on your attorney to help rehabilitate you through the process.

Andrew McGuire:
Okay. And do judges read or watch depositions or is it just for the lawyer?

Blaine Clooten:
That's a good question. So judges will rule on objections in depositions. So if, in my hypothetical where you're at you at the Juniper case, and you're being asked sexual questions, your lawyer would object. And then if they continue to insist on asking that question, you could get a ruling about whether or not it's relevant from a judge. If you get into trial and you ask the person the same question at trial that you asked them from deposition and they answer it differently, you can offer the deposition transcript into evidence to impeach what they've said. So the judges would see it that way. The judges do not see the full transcript of the deposition.

Blaine Clooten:
The only chance that a judge might have to read a full deposition is generally if the case is on appeal, then more of a deposition transcript might come in. But that's also only generally true if the deposition itself was offered as an exhibit at trial. So it has to be made part of the record at some point. And the deposition is not part of the record until it cut comes in at trial. So although it's part of the court process, and there's a court reporter and it's court like proceeding and there's objections, and you can be in trouble with the court if you don't follow and comply with the rules of deposition, the judge has not seen the transcript or seen the deposition unless it's actually offered as an exhibit or offered at the court level.

Andrew McGuire:
Got it. Okay. Thank you for that. I was curious about that as we're going through this, like there's lawyers and the judge seems to be the most, well you could argue is the judge the most important person in the room? But regardless that's for another time, I'm curious if I go through this whole thing, right, I'm deposed. I don't walk out. I get through the questions. I calmly run my slow, the opposite of whatever a Chip Kelly offense is. And then I'm done I'm out of there. Right? So how many times can I be deposed? Is it just one and done? Or can they bring me back if they can just come up with and save the second layer of questions for another time based on what happened the first time?

Blaine Clooten:
So generally if there's more discoverable information or if they find out, this is more like if we're doing some sort of corporate deposition and we find out that the designee of the company is the wrong person, that they're going to have to depose somebody else. But let's just say that, they've asked all the questions of you. You feel like you've answered them and the deposition is over and closed. Then they could send out a new notice of deposition. They could depose you again. It's not a one and done thing. It's until they get to all of the information that's relevant and potentially usable in your case against you. So most of the time though, at the end of the first day of proceeding, they'll say you're still under deposition. We're going to continue this deposition until the next day, but this deposition is continuing until tomorrow. So you're still under the obligation to reappear the next time.

Andrew McGuire:
Okay. Got it. So here's my last question on this topic, and then we can conclude this, but we've been talking a lot about them, depositions. Is a deposition a bad thing? Feels like it depends on your point of view, but that's just part of legal proceedings, right? It's not necessarily a bad thing or is it?

Blaine Clooten:
So I'm a lawyer and I like deposition because it's helping me get to discoverable information that I may not otherwise get to. So the biggest way that it's useful is in two major contexts. One is where I have an opponent that's refusing to provide certain documents or things that I've requested from the other side. And so when I subpoena them with the duces tecum and tell them that they have to bring the stuff to the deposition, then maybe I'll finally get the materials that I've been requesting over and over.

Blaine Clooten:
The other reason why it's so important in almost every single case that you might come across is because that person that you're talking to may not ever give you the information that you're seeking until you actually got to the trial and they're put under oath. Because a deposition is under oath, you can ask them questions that you would otherwise have to ask them at trial and find out the answer. And then you could know, do I actually have a viable case or is this case just a shot in the dark? And maybe that would lead the person to either dismiss their case or amend their case in some way. So it's really good for getting at what is pertinent in the case.

Andrew McGuire:
Yeah. Okay. Well, thank you for explaining all this to me. I feel like I have a clearer understanding of what a deposition is and if I can walk out or not with my Juniper tree problem that we made up. But regardless, it's been helpful to get some clarity around this topic. So thank you.

Blaine Clooten:
Tell the people where to go if they have questions and they want us to answer them.

Andrew McGuire:
Twitter, @mylegalcenter. That is where you can ask your question, which we'll put onto an episode here and call out your Twitter handle too. Start submitting questions here. So go on Twitter, ask your question. You'll hear it here first.

Blaine Clooten:
All right. This is Blaine Clooten with Andrew McGuire, thanking you for joining us today on Ask A Lawyer and until next time we'll be looking for more of those questions to answer here on Ask A Lawyer.



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