April 21, 2005

Pandemonium

One of the first things that baby lawyers who practice in my practice area get to do is take depositions of plaintiffs. We have tens of thousands of folks who sue our clients, so arranging and taking their depositions prior to trial is time consuming and can be difficult to do. However, baby lawyers are perfect for these types of tasks, since they have a lot more free time and can use the experience to learn about the cases.

Needless to say, I've taken my fair share of these depositions. So when I volunteered to help another attorney at my firm and said I would take a deposition yesterday, I thought nothing of it.

I should note at the outset that this particular deposition was involving a case where many plaintiffs had sued a cast of thousands of defendants, so when you attend one of these, the conference room is chock full 'o lawyers. A scary sight sometimes, but that's how it goes. I expected to see a room full of folks, so I got there early and reserved my seat while I looked over my notes.

The deposition started innocently enough. Things were actually rolling along pretty smoothly -- I was making some progress with my questions, and the witness was very nice. Once I decided to start asking him questions about the various jobs he'd had (he was claiming he had contracted an illness because of exposure to certain substances at various jobs he'd had over the years), things got weird.

To make things go a little easier and to jog his memory, I had a copy of his printout from the Social Security Administration, which lists all of the emplyers he's ever had (presumably). I told him I'd be asking him about each employer, and mentioned that his attorney also had a copy of the printout I was using, and he could look at it and follow along with me if he wanted.

At this point, his lawyer showed me the printout and said, "Here's what I'm showing him. It's clean. See?" I thought that was a strange comment, because I was thinking, why wouldn't it be clean? But I dismissed the comment and started questioning the witness. Things progressed without incident until lunch.

We took a break for lunch and when we returned, the witness and his attorney came back in the room and sat down. The plaintiff re-opened his social security printout and was looking at it on the conference room table. I glanced at it and noticed that it had handwritten notes all over it. Thinking this was strange (particularly in light of his attorney's earlier comments about how he was looking at a clean copy), I made a note to ask about it when we got to a good stopping point. When we did, I said, "Sir, I don't mean to be nosy, but it looks like your copy of the printout has some notes on it. What are those?" At that point, his attorney flipped out.

His attorney looked apoplectic, became red in the face and started yelling at me. He began shouting, "This witness has made notes on the papers in the presence of his attorney and he made them to prepare for his deposition! He's allowed to use them to refresh his recollection if he wants! How dare you imply that he isn't being entirely truthful!" I calmly replied, "I wasn't implying any such thing. I was just wondering what sort of notes he has on his printout." His attorney spat out, "He told you all about them already, so move on." I said, "No. YOU told me about them. He hasn't told me anything yet." His attorney shot back, "He's allowed to make notes if he wants to," to which I replied, "I agree," and his lawyer said, "Then why ask him about it?" I replied, "If he's going to use them during his deposition, I'm going to ask him about them. I want to see whether the notes were based on his independent recollection of the facts." His lawyer shouted, "Well, what else would they be based on!?" I calmly replied, "I don't know. That's why I'm asking the question." The attorney crossed his arms like a four year old and spat out, "Fine. Ask him."

Keep in mind, as a rule, people don't yell at me. I'm a pretty laid back kitty and I get along with just about everyone. The fact that I was completely calm and unruffled during this exchange only made him more irate. It didn't help the situation that all of the other lawyers in the room were now loudly whispering to one another, clearly riled up.

I asked the witness whether he made the notes, where he got the information, etc. Finally, after I'd asked all my questions, I asked his attorney if he could attach a copy of the now-infamous document to the deposition. He agreed.

Thinking all of the craziness was behind us, I forged onward. After about an hour, the witness asked if we could take a break so he could get a glass of water. I agreed. The rest of us sat in the conference room and waited for his return. And waited. And waited. Around 20 minutes later, he and his attorney re-entered the room. While we'd been waiting, several attorneys asked me when we would finish up the deposition for the day, as they wanted to beat the rush hour traffic. I had promised them I would address it with the plaintiff's lawyer as soon as they returned.

Making good on my promise, I told the plaintiff's attorney when they returned, "Well, the $64,000 question seems to be when we're stopping today." He replied, "Yes, we need to discuss that, but we also need to talk about something else and you're not going to like it." Oooookay. We went back on the record and he said that the document they had brought with them to the afternoon portion of the deposition was a privileged document which "was unintentionally produced", that they were withdrawing it and we could file whatever motions we wanted with the Court.

At this point, pandemonium ensued. The attorneys in attendance were obviously freaking out and the plaintiff's lawyer thought we should just keep going and finish as much of the deposition as possible. Naturally, that didn't sit well with some folks. Ultimately, the plaintiff's lawyer's boss came in and shut down the deposition amid the uproar. I've had multiple phone calls today from people who were either there or heard about it, all of whom are amazed at the turn of events.

If ever there was an excuse to start carrying alcohol in my purse, that deposition was it.

Posted by Kitty at April 21, 2005 01:27 PM

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