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August 19, 2021 Words

Hidden Meanings

Here are some common phrases uttered in deposition or in court, along with what might really be intended by their speaker.

John Froemming

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As a younger lawyer, I took everything at face value. Only later did I realize that much of what I heard from opposing counsel simply did not mean what the words said, but rather something else instead. The same was true for judges. They, too, often meant something other than the words they were saying.

To pay it forward to the next generation, here are some common phrases uttered in deposition or in court, along with what might really be intended by their speaker.

 

Illustration by Sean Kane

Illustration by Sean Kane

When the deposing lawyer says to the witness, “I’ll come back to that” a lawyer really means That’s a negative point for my side; I’m never coming back to it.

“Why do you say that? What do you mean by that?” means I just got a nice admission from you; now go ahead and dig a deeper hole for yourself.

Did you consider … ?” means I’ve trapped you; either you did not consider it and thus were careless, or you did consider it and thus were willful.

Have you completed your answer?” means Stop right there; I now have what I want from you on this point, and my record is clear. Please don’t muck it up.

“Is it fair to say that … ?” means Let me recap what you just said so that I can use it in my summary judgment brief. If that doesn’t work, I’ll use it for my cross-examination of you at trial.

“If you don’t hear or don’t understand any of my questions, will you let me know?” means If you later say you misunderstood, I will play this part back at trial.

“Is it your testimony that … ?” means I’m using reverse psychology on you to show that you lack credibility.

“Have you ever told anybody that … ?” means I’m setting you up for impeachment at trial.

“Are you aware of the penalties for perjury?” means I think you’re lying.

“Is Mr. Smith an honest man?” means Please vouch for my witness; at least acknowledge that you can’t say my witness is dishonest.

“You have no reason to deny receiving this document?” means This document might not be admissible, but please help me try to get it into evidence anyway.

Asking, at the end of the deposition, “Is there anything that would refresh your recollection about any of your testimony today?” means I like what I got from you today, and I want to make sure that you don’t try to change it later, claiming you “remembered” something after you’ve checked your files or talked to your lawyer.

When opposing counsel says to their client or deponent “If you recall,” that means Please don’t recall.

“Do you need a break?” or “Are you tired?” means You should take a break because you are not doing well; we need to talk.

Asking the court reporter, when defending a deposition, “Would you please read back the question?” means the witness should understand, The question is not objectionable, but it’s a tough one; please think carefully before you answer it.

When the adverse deponent says, “I don’t specifically recall,” that means I remember, but I don’t want to tell you.

“To be honest with you” or “Frankly” means I’ve either been lying or less than forthcoming until now, and I might still be.

“That wasn’t my job” means I know what happened, but I’m trying to stay out of this.

When you tell opposing counsel they made a statement with “commendable candor” you mean You just made a damaging and possibly ill-advised statement against your client’s interest.

In deposition, “Are you done?” means Stop your speech; please be quiet.

Asking opposing counsel who is taking the deposition, “May I voir dire?” means I’d like to seize control of your deposition by showing that the admission you seek lacks foundation or is otherwise inadmissible.

When responding to opposing counsel’s request for a break at deposition, “I just have a couple more questions first” means I’m on a roll and about to secure a key admission; don’t interrupt my momentum.

When responding to an opposing counsel’s objection during a deposition, “I’ll take that under advisement” means I will not take that under advisement; you will never hear from me about it again.

To a hostile trial witness, “I won’t stop you from completing your answer” means I can’t stop you; you’re about to clobber me with harmful testimony, but I’m powerless to cut you off in front of the jury.

Asking a judge for a “point of clarification” to his or her ruling means I’d like to gain a further advantage from a ruling that you just made.

When the judge asks, “Do you have anything else to add?” that means I’m about to rule against you, so you better have something good to add and you better do it right now.

To a third-party witness after an interview, “Can I write up my notes of our conversation and run them by you to make sure I got everything right?” means I’m going to draft a declaration that I’m going to ask you to sign.

When a fellow lawyer says to you, “Your witness was credible,” that means I’m giving your witness my highest praise.

And when that colleague says to you “Good result,” that means I’m giving your work on that case my highest praise.

When adverse counsel says, “With the utmost respect,” that means I think you’re an idiot.

When communicating to a client, “There has been a development,” this means Something bad has just happened.

John Froemming

The author is a partner with Jones Day.

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