How to Defend a Deposition: Just Show Up
I find myself using the very same term—“unsophisticated”—when describing my former client, a term I criticize below. But I use it not because my client lacked intelligence. It’s because I know she would’ve been railroaded if she’d showed up to the deposition alone.
But I was there for her.
And drilled into me during the experience was this: all I had to do was show up. That was it. Just show up, and most of the work of representing my client effectively was already done.
A Legal Emergency
She called me a week or so earlier with the type of legal emergency that you only get from procrastination. She had a deposition on such-and-such a date, very soon, and would I represent her?
In fact, the whole case at that point came about from procrastination. A couple years earlier she failed to answer and defend herself against a debt collector’s lawsuit. She didn’t owe the debt, she told me, they got the wrong person. And so she did nothing. By doing nothing, by not showing up in court, she lost the case by default.
Now, there aren’t very many good reasons for doing nothing when faced with a lawsuit.
But that wasn’t front and center at the time. Front and center was the document on my desk, a “Notice to Take Oral Deposition in Aid of Execution,” which basically means opposing counsel would ask some questions, the answers to which might help him collect on the default judgment.
I’d never defended a deposition and wasn’t sure where to begin. Anything could go wrong. This was a friend-of-the-family type of situation. She didn’t have much money. I didn’t have much experience. So I traded my time pro bono and said I’d help her for free.
A Note about ‘Sophistication’
When I call my client “unsophisticated,” as I’d heard law professors use the term in the classroom, I am struck by how it’s really just another way of calling clients stupid, more or less. It’s politically-correct speech for lawyers. It helps me get my point across without looking like a jerk. To call someone unsophisticated is to imply that the client knows very little about the legal process, for one thing, and really very little about much else.
But that’s not my intent here, as I use the term. In my opinion, my role as a lawyer is to fill in the gaps, to write and argue a legal position as well as I can, and to hold the client’s hand through the process. I would argue that this responsibility exists independent of the sophistication spectrum. You’d do the same thing for an abused or neglected five-year-old boy in family court as you would for a brain surgeon sued for malpractice.
The Danger of Being Unsophisticated in a Deposition
Everything I needed to know about depositions I learned in law school. Right. But this meant I had the vague notion that opposing counsel was free to ask pretty much whatever questions he wanted to ask as long as the questions were relevant, reasonable, and civil. Depositions are for discovery, after all, to get at the truth.
But this deposition was so informal that opposing counsel could really have done whatever he wanted in that room, if only, of course, the woman he wanted to depose had shown up alone. There was no deposition reporter, no camera, no nothing. Just big bad opposing counsel and his paper and pen. There would have been no record, in other words, of anything that happened in that room, were it not for my being there.
That’s exactly the danger of being unsophisticated, no matter who your client is, whether she’s a child or a brain surgeon. And if that’s the case, let’s just call being unsophisticated something else: un-lawyered.
Just being there, in the chair sitting next to my client—that was enough to protect her from what undoubtedly would’ve been a field day for opposing counsel, who had summoned my client in an effort to collect a debt, who wanted the treasure map, to see for himself the proverbial X on the map where the loot was buried.
What’s Your Take?
How many beleaguered people show up like this without representation? How many get taken advantage of because no one’s there for them, a simple lawyerly presence in the next chair over, who need do nothing but be there to protect the client’s rights? In defending my client’s deposition, I didn’t really have to do anything. I simply sat there and let opposing counsel ask his questions. I let my client answer. But the nature of those questions was undoubtedly different than they would’ve been, had I not been in the room.
I know there’s more to defending depositions than this. I know there’s a lot I don’t know. And I am curious. In a case like this, in defending a deposition, is showing up really half the battle?
Let’s say the answer is yes.
In that case, if you’re a newly-minted lawyer with “imposter syndrome”, as Sybil Dunlop called it, with little to show for it besides a piece of paper that says “JD,” you’ve got more power than you think.
Update: April 22, 2013
Let’s assume that you’re a law student or new lawyer. You read this and made the mistake of believing my every word. Fear not, dear reader. Showing up is merely half the battle. There’s a lot more to depositions than that. To some, like Alex Craigie, who wrote a useful post refuting the idea of the lawyer as potted plant at a deposition, there’s a whole truckload more. And Jordan Rushie weighed in earlier with how dangerous it is to show up and play lawyer.