Seize the power in your next deposition

Posted: May 4, 2017

I blogged the other day on why you’d want to, or need to, video-record a deposition: a witness being out of the country, outside subpoena power, sick, or otherwise unavailable. Or maybe a key witness for your side is better on camera than in print. (On the flip side, you’d want to video-record opposing witnesses who discredit themselves on camera).

Here’s one more reason to film: by video-recording a deposition, you seize control of the deposition room and everyone in it.

Video-recording a deposition and miking up all the players – including attorneys – turns up the heat on a room, amps up the pressure, and elevates the seriousness of the proceedings. As a result, all participants generally behave. That’s important because

Lawyers behaving badly

In depositions I’ve taken, I’ve had lawyers lean across the table and threaten me, mutter profanities, loudly shake their newspapers, object continuously to disrupt my flow, and blatantly coach their witnesses.

Recently, a lawyer was fined after flinging her iced coffee at her opposing counsel. While you could argue that this was an extreme overreaction to whatever was happening in the room, the judge placed the blame on both parties. In her order, she observed that these two lawyers “bait each other, and their exchanges are often fractious and frayed.” I’d say so.

An attorney recently called 911 to get his opposing counsel arrested for allegedly shoving pistachios in the face of his assistant, who has a nut allergy. (It turns out a judge had left the nuts on the conference table.)

A California attorney was sanctioned for making a sexist remark followed by only a “politician’s apology.”

You may not reform these types with a camera, but you can certainly rein them in.

It’s not just lawyers who need to be controlled. Witnesses often flout the proceedings with sarcasm, flippancy, obstinacy, evasiveness, and vulgarity. These attitudes can hurt them if caught on camera and revealed to a judge or jury.

So, the next time your deposition is shaping up to be a circus, be the lion tamer and bring a videographer. Putting the camera on opponents will discourage them from repudiating outrageous antics. The spotlight will force opposing witnesses to engage with your questions, and – added bonus – might even make your own witness sharper.

Either way, you’re in control.

Avi Stadler

Avi is a veteran litigator with deep experience in the financial industry, representing clients in federal and state court, arbitrations, investigations, and regulatory actions. He has handled numerous cases involving business disputes, professional liability, intellectual property, employment discrimination, and white collar crime. As a former adjunct professor at Georgia Tech and in the Emory Trial Techniques Program, he has trained hundreds of law students and law firm associates on deposition and trial advocacy.