January 10, 2020 Feature

Lessons from Deposition War Stories

What to do when opposing lawyers nearly start a fistfight.

Douglas Connah

I once was one of a half dozen or so out-of-town lawyers attending a deposition in Miami at which, after eliciting the witness’s name, a local criminal lawyer, counsel for a co-defendant, opened with the following question and received the following answer:

“Mr. Martinez, as we sit here today, are you armed?”

“Yes, I am,” the witness said.

Thereupon the deposition was suspended, and we cooled our heels for a half hour or so while the interrogator telephoned the judge’s chambers. Mr. Martinez was then admonished to check his weapon at the door, and the questioning continued without incident.

As mundane as depositions can be, they often have their surprise moments, incidents that you cannot have prepared for or predicted.

As mundane as depositions can be, they often have their surprise moments, incidents that you cannot have prepared for or predicted.

Photodisc via Getty Images

This was the second time in 30 years of practice that I had encountered a lethal weapon during a deposition. In the first, a libel case, I represented a Baltimore Sun reporter, and his questioning took place in the plaintiff’s lawyer’s office. At one point, the lawyer suddenly reached into his desk drawer and out came a .45-caliber automatic, which he waved maniacally back and forth. After a tense moment during which I resisted the temptation to hit the floor, he laughed and put the pistol away and asked my client his next question.

As mundane as depositions can be, they often have their surprise moments, incidents that you cannot have prepared for or predicted. For these, you must be nimble enough to react instantly, without losing your cool and without allowing aggressive, often obnoxious adversary counsel to knock you off your stride.

Here are some examples from my three decades of practice. They’ve been edited and condensed for clarity, and some names have been changed to protect the innocent and disguise the guilty.

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