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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.

My fellow Baltimorean, Representative Elijah Cummings, the late chair of the House Committee on Oversight and Reform, practiced law for 19 years before his election in 1996. Our paths crossed in cases and at other events, and occasionally we represented adversaries. Cummings represented the plaintiff in a libel action against my client, WJZ-TV, a local ABC affiliate, based on its report about the hunt for a kidnapper who had abducted a woman and stashed her in a downtown Baltimore no-tell motel.

Cummings’s client became a suspect after he left a hardware store near a staked-out phone booth identified as the one the kidnapper used to make his ransom demand. Carrying a bag of coins, the plaintiff was grabbed by the cops when he entered the phone booth. Later, he was freed without charge. But my client’s video footage identified him as the suspect of the moment.

Turns out he wasn’t the perp. I forget what the coins were for, but they weren’t for making ransom. The most memorable part of the case was the plaintiff’s deposition, where I asked a question I routinely asked:

Q: Please forgive this question, but I have to ask it. Have you ever been convicted of a criminal offense?

A: Yes, I have.

Q: Please tell us what offense or offenses you’ve been convicted of?

A: Murder in the first degree.

[Long, silent pause.]

Q: Uh, uh, can you tell us, er, to what, um, prison term, if any, you were sentenced?

A: Yes, I was sentenced to life imprisonment.

[Cummings is sitting back in his chair, his arms folded across his chest.]

Q: Well, er, uh, can you please tell us how you happen to be sitting here today?

His crime was committed when he was a teen, and, after serving 14 years, he was paroled and he was now a model citizen working for a construction company. After I was able to get past my astonishment that a convicted murderer was sitting across the table, the deposition proceeded without incident.

Not Quite a Fistfight, but Close

In another deposition, I represented a nonparty witness, Walsh. Plaintiff’s counsel, Rainey, is questioning the defendant, who is white and represented by an attorney named Quillian. Rainey is African American, and Quillian, like his client, is white. From the transcript:

Q: Have you ever referred to black persons in the presence of any of your coworkers using a racial epithet?

Quillian: Objection. Don’t answer that.

Q: Have you ever used racial epithets regarding black people?

Quillian: Objection. Have you ever used any concerning white people, Mr. Rainey?

Q: Have you ever heard your counsel use those kinds of words about black people?

Quillian: That’s it. Deposition terminated. You can leave now. [Inaudible expletive.]

Rainey: You called me a damn son of a bitch.

Quillian: Is that a racial epithet?

Rainey: Did you call me a damn son of a bitch?

Quillian: What did you hear?

Rainey: I heard you say damn son of a bitch.

Quillian: Get your ears cleaned out.

Rainey: I demand that you retract that statement calling me a damn son of a bitch.

Quillian: I denied that I called you a damn son of a bitch.

Rainey: I heard you say it.

Quillian: You must have been reading my mind.

Rainey: Mr. Walsh, did you hear him?

Connah: Mr. Walsh is not going to answer that question, at my direction.

Rainey: Did you hear him, Doug?

Connah: I am not going to answer any questions other than the normal attorney courtesies, especially under circumstance such as this, unless you note my deposition, I have counsel, and I am advised that the question is relevant to something or other. I am flatly not going to get into the middle of that.

Rainey: Mr. Reporter, did you take down what Mr. Quillian said about me?

Reporter: I saw the words formed on his lips, but I heard nothing.

This was the most nakedly hostile exchange I witnessed in 30 years of depositions. I distanced my client and myself from the animosity and made sure my client kept silent.

The Smart-Aleck Witness

Now and then, a witness you’re deposing will test you by evading even the most trivial question.

I deposed one such witness, the plaintiff in that case, whose lawyer was named Gordon:

Q: I’ll show you what’s been marked as Cassidy Exhibit 1 and ask if those are the answers to interrogatories that you executed and submitted in this case.

A: I believe these are my answers.

Q: Look at the last page.

A: The last page has a copy of my signature.

Q: So it’s not you believe; it’s your answers, right?

A: I think so.

Q: Is there any reason not to think so?

A: No reason not to think so.

Q: So they are your answers; is that correct?

A: As far as I know.

Q: If there is some doubt about it, let’s clear it up right now. If you have a doubt, read them all the way through.

[Pause for document examination]

A: Those are my answers.

Later I asked him about an exhibit, a letter he’d produced in discovery.


Q: How is it that this letter is in your possession?

A: You just handed it to me.

Q: You know what I mean. Stop playing games. I handed it to you, but your counsel handed it to me and it didn’t come out of thin air. How did your counsel get it?

So it went, all through the deposition. The witness couldn’t keep from being snarky and evasive. Don’t let it happen. Witnesses must be shown that evasive answers won’t be tolerated. Keep asking until you get the answer you need.

Another Smart-Aleck Lawyer

In another case, I represented a manager in the environmental quality control department of a national industrial corporation. A lawyer named Lewis represented plaintiffs in an asbestos-exposure case and was questioning the witness about a company training program and its documents:

A: When I use the word “road show,” I’m talking about where we went to a department itself and put the training on there. Or we trained people in the department so they could do their own internal training.

Q: Are there any of these training materials still in existence from the 1970s?

A: They have gone through editing and I don’t know if there’s any of the original left.

Q: Mr. Connah, could we gain access to this material, if it still exists?

A: The answer to that is definitely maybe.

Yeah, it’s a bit of a snotty answer, but I just couldn’t help myself. It’s best to resist impulses like these. Better to say: “I’ll look into it and get back to you.”

So how do you prepare for the unexpected?

No matter how thoroughly you prepare for a deposition, there’s always the chance of an off-the-wall situation, ranging from the trivial to the outrageous. Keep in mind Murphy’s law— “If something can go wrong, it probably will.” Train yourself to expect the unexpected and follow a few, simple principles:

  1. Become a careful listener. Make sure you understand exactly what the witness and counsel are saying at all times. Listen to the witness’s every word. Take time to think through your next question.
  2. Think before you speak, and know when to keep your mouth shut. When the shouting match erupted between counsel who nearly came to blows in the example above and both were on their feet screaming and gesticulating wildly, I kept myself and my client far removed from the venom. I said as little as possible and kept my client from saying a word.
  3. Learn to be flexible, yet firm. Deviate from your outline and go where the witness takes you. Then return to your outline. Don’t allow an adversary or witness to control the deposition. Insist on answers to your questions.
  4. Don’t forget that a record is being created, and consider the record to be your friend. Make a record whenever you believe it’s necessary.

Making a record works both ways, especially with a clever adversary:

Connah: Let the record show that while I was asking a question, Mr. Goldman winked at the witness.

Goldman: (emphatically) That’s just a tic I get from listening to these crazy questions!

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Douglas Connah

The author is a founder of Litigation, and was editor in chief from 1976–78.

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