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.


  1. This was a lesson I learned early on in law school. I had one particular professor who was quite memorable who always stated that “just showing up” was the most important thing.

    She even went so far as to say that if you did not know the answer to something, “make it up!”

    This instilled a certain confidence in me that I think I lacked prior to becoming a lawyer.

  2. Avatar Mike Pospis says:

    Interesting. Here in New York, where I practice, recently-amended rules significantly limit what a defending attorney can (properly) do in a deposition. (I’ve once heard defense counsel’s role at a deposition compared to that of a “potted plant”, which isn’t too far off the mark). I do agree that your presence likely protected your client for the reasons you describe. I am curious, however, about the record (or lack thereof) of the proceeding. Is that typical in that kind of case/where you practice? Did the deposing lawyer have someone with him who could swear to what was said, if there was a dispute?

    • Max Kennerly came up with the “potted plant” analogy.

      His point wasn’t to just show up and look stupid, though. Max’s point was to prepare your witness so well that there wouldn’t be a need for standing objections.

      The worst thing you can do at a deposition is just show up and play around on your cell phone. It takes a great deal of preparing your witness, polishing the testimony, and making sure your witness knows how to appropriately answer questions. If you do all the legwork, then you can just make sure to object to questions that are unclear, confusing, or will divulge privileged information.

      • Avatar mjp says:

        You’d be surprised – sometimes just showing up and looking stupid is quite effective. You must not confuse “looking stupid” with “being stupid”, however. This is very important.

      • Avatar Todd Murray says:

        I agree with Jordan. This is terrible advice. Maybe this piece is meant to be tongue in cheek, but a deposition in aid of execution in a debt collection case is very, very different from a more typical discovery deposition. The fact that you don’t seem to realize that there’s a big difference is troubling and really destroys your credibility.

        • Avatar mjp says:

          I used to work for an older lawyer who would lean back and pretend to sleep while defending depos. It seemed to work for him.

          Obviously preparation is vital, but there’s only so much you can do. I once sat helplessly while a witness – a technical expert in a patent case – completely undermined our theory of the case (and his credibility) with one answer to an unobjectionable question. When pressed by the examining attorney, he continued by saying “we’ll, I assume…” We spent at least 10 hours prepping for that depo, during which we must have said “don’t assume”, “only answer of you know”, etc. at least 20 times.

        • The other half of the battle would be following Jordan Rushie’s advice above, wouldn’t it?

  3. Avatar Lukasz Gos says:

    ‘Twas about halfway through law school, or earlier, that I learnt playing dumb was a pretty good strategy. The way I see it, playing dumb tends to be employed by gov’t agencies and corporations when they’ve made the decision to go rogue on something. That means giving minimal information, no substantive content if it can be helped, as much repetition as possible (broken record), and pretending not to understand or even not to notice any troubling questions. Pretty much the same goes with pulled out of thin air decisions the system decides to uphold on appeal no matter what. In the language of gamers, that would be “turtling” or “basecamping”. When you “turtle”, you’re the big noob who obviously can’t play the game but knows how to line a ramp with siege tanks and bunkers and put some fliers up there for air defence. You don’t care about resources (which are all over the map and consumed by pretty much doing anything), you just want to outwait your opponent into “ALT QQ-ing” (a variety of ALT+F4). There are actually other such strategies, more efficient than turtling, which are the trademark of a noob but in the hands of someone who actually knows how to play the game (insight, flawless mechanics), they just break the system. So the guy just plays dumb (and in really enraging ways), and wins the game. I’ve seen the Attorney General here do the same.

  4. This is one of those situations where you should “know what you don’t know.” A deposition in aid of execution is different from a discovery deposition in a civil case. And that is about my extent of what I definitely know about collection law. And why,despite practicing for almost 25 years, it is at this point that I’d call someone who did know what they were doing. I think the reason why there was no court reporter is because they don’t care about an actual record–they are just getting information in order to execute and seize your client’s assets. I have no idea if you screwed up by allowing your client to answer these questions or not, but I think its probably a 50/50 proposition.

    I’m sorry, but just showing up isn’t the best of advice. Representation by a lawyer ignorant in the law can certainly be worse than no representation–later when someone who does know what they are doing is trying to help this lady, that attorney can’t plead that she was unrepresented. Seriously, if for no other reason than to CYA, you shouldn’t represent clients in matters in which you have no experience. You are opening yourself up to a malpractice claim.

    • I find it funny how risk-averse attorneys really are. I appreciate your thoughts, but you simply weren’t there. Because I was, I almost certainly did my client a service. The questions opposing counsel asked were very few and elicited no new information that he didn’t already have.

      • Our job is to ask “What’s the worst that could happen?”

        When you know the answer, it’s a scary world. Jail, judgments, bar complaints, lawsuits, contempt, sanctions…

        I wish the answer was “You hit the reset button and get a do-over.” It never is, though.

  5. Avatar Josh Friedman says:

    Wonderful advice; almost as good as your hard hitting articles of what type of ties to wear. Anyone following this line of wisdom should make sure their malpractice insurance is paid up.

    • Sam Glover Sam G. says:

      You don’t like Leo’s fashion advice?

    • Leo didn’t write this one. I did. And I wasn’t giving advice. I was simply describing my experience. In a deposition like the one I described, showing up, at least to me, felt like half the battle, because the plain fact was that the woman being deposed would’ve been taken advantage of without legal representation. You could argue that would nearly always be the case—to go into something without representation and be at a disadvantage—but in this specific type of deposition, it seemed very clear.

  6. Avatar Jeff Vail says:

    Shane Read’s “Winning at Deposition” is quite good–inexpensive overview for anyone about to defend their first deposition, but still provides useful tips if you’ve taken dozens of depos. If you have the money (or a firm to pay), the NITA course is also very good. Depending on your practice area, this may be one of the most important skill sets…

  7. Here, I wrote a reply piece:

    And Chris, I generally like your posts, I just think this one was dangerous and short sighted.

    • Your post is way more useful than mine could ever claim to be, but you’re making a big assumption, which is that I never prepared my client, which isn’t true. However, I can definitely see why you’d draw that assumption, because of the way I framed my post. Fair criticism, here. And I’m glad this post got others with more experience writing about it. I don’t think there’s a lot out there about handling depositions.

  8. Avatar Frederick Northrop says:

    This is, more-or-less, the way it is done in California. Technically, the judgment debtor is summoned to a “Debtor’s Examination” in court, but in every court I’ve been in, the judge tells the debtor and the attorneys to go into a jury room and there is no court reporter. I suppose if the debt were large and I thought it necessary, I could bring a court reporter to one. One might be able to get the judge to allow you to run a tape recorder too. But the exam is usually just a series of questions about employment and assets. If there is reason to think the debtor has hidden assets, the questioning might start going far afield and there is always a risk that a debtor, knowingly or not, might admit to criminal activity or volunteer information. Showing up is a lot. Someone needs to keep the deponent focussed, calm, and as quiet as possible.

  9. Avatar Older Lawyer says:

    I really like this blog, and this post particularly. But when you are defending a true deposition for a later trial (as opposed to a deposition in aid of execution, etc.), you must consider something. Did the deposing lawyer leave only enough testimony to “aid” them in a summary judgment motion against you? If so, you may wish to clarify, or supplement the testimony to assist in your own case. Or perhaps your client was wishy-washy and didn’t really set up he case well and made it debatable whether the case would survive a summary judgment motion. Again, my opinion, time to clarify. Remember, it will not always be your client who is being deposed as well, at times it might be a witness that might very well not be available for later testimony, and the witness could be favorable to your client. Leave it wishy-washy? True, do not try your case in the deposition. But do enough…..

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