Outside Counsel

I took a deposition yesterday in a case where we represent the plaintiff, and it reminded me of my early days in this glamor profession. One of the things that is tough when you are starting out is how lonely it is, particularly if you are plaintiff's counsel. I don't mean in the office-- there everyone is more or less going to be sociable, if only to complain. I mean in the courthouse, or at depositions. In those settings I always felt like Rudolf the Red Nosed Reindeer, watching the defense counsel chat, and always feeling left out. It's a tactic, of course, and in yesterday's festivities opposing counsel took it the next step. He's a nice enough guy, I suppose. I've practiced law in this town long enough to have known him for years, and in a social setting he is certainly genial, but it is a mistake to ever think that anyone's amiability is going to carry over into the arena. This guy is very careful to prep his witnesses to avoid specifics, since that's what can trip someone up later. Because taking depositions is a listening skill, if I ask, "What did he say to you?" unless I hear, "He said..." I am going to ask a follow up question. This is particularly true if the answer I hear is along the lines of, "I was concerned that...", or "It was dark, so..." or something else that isn't an answer to the question I have asked. I ask a lot of follow up questions, actually, because witnesses frequently answer the question they want to answer, instead of the question they are asked. This lawyer's deposition posture is siting with his head hanging down, occasionally shaking it and sighing as though he can't believe you are wasting everyone's time by asking such stupid questions. Sometimes he'll say wearily, "You've asked that fifty times!" Sometimes he says, "You already asked that and the witness told you X." (That's against the rules, but I do it too. Everyone does.) Sometimes he'll say, "What, did you go to the Paul Beltz school of depositions?" He's made that crack at each dep we've done in this case, and that's usually the cue for co-defendant's counsel to chime in: "I'm glad you have a rule in Buffalo that you pay for the questions you ask." (He's from Rochester, which has its own set of quirky deposition rules. Paul Beltz is the dean of Western New York trial lawyers, a very meticulous examiner, and generally regarded as a thorn in the side of the defense bar.)

Here's the thing: these are tactics. In fact, when I get a loud sigh usually what that means is that I'm on to something. I recognize the tactic, and I don't let it get to me, except that yesterday I was irked because it is such an obvious tactic. It didn't work on me when I was two years out of law school, and it isn't going to work on me now. I can't really call them on it-- they'd act as though they didn't know what I was talking about-- so I'll put it here, as a reminder to myself to talk about this with the students in my Discovery class next term.