Daily Archives: September 10, 2010

Memorable Depositions

The ABA Journal has asked readers what are some of the memorable depositions they’ve been in over the years.  I had a good laugh at a few of them.

“Andythelawyer” remembered a depo where the client shared more than his attorneys thought appropriate:

A couple of decades ago I was representing one of many directors of a failed savings and loan in a massive consolidated shareholder securities class action.  The deposition witness was the S&L’s former president—a little old guy with a Czech accent worth about $750 million (which was real money back then).  The deposition was taken in a downtown Los Angeles law firm’s conference with 40 people—mostly lawyers, including 4 representing the witness.

After an hour one question (I don’t recall what) prompted defense counsel to clamp their hands over the witness’s mouth and drag him down into a huddle.  After two minutes of murmuring his little bald head popped up, chirping: “On the advice of counsel, I don’t remember.”

Pandemonium ensued for the next 15 minutes.

“Jon Hyman” had me groaning:

The case began as a sexual harassment EEOC charge alleging that a corporate executive displayed pornographic images on his computer to a female subordinate. Everyone at the company denied the photos existed. In fact, the executive had a plausible explanation—the charging party was a disgruntled, terminated employee who may have accidentally received an email forward of a dirty joke, and was exaggerating that one isolated incident to extort money through a bogus claim. I responded accordingly in the company’s position statement to the EEOC, which found no probable cause.

Flash forward six months. The lawyer for the ex-employee (now a plaintiff) is deposing the same executive. Her lawyer marks the position statement as Exhibit 1, and the executive re-affirms his story. Her lawyer then marks as Exhibit 2 the discovery responses in which the company denied that any pornographic photos existed, and the executive again re-affirms his story. When her lawyer marks a manila envelope as Exhibit 3, I started to feel a pit in my stomach. When the executive opens the envelope and reveals a half-dozen pornographic photos, the pit moves up into my throat. When I realized that the photos are of the same executive cavorting with two women—whom he identified on the record as “escorts”—I just about threw up.

“Jane” remembers a court reporter distracted by a witness:

I was taking a deposition in a suburb of Cincinnatti.  The court reporter had travelled two hours to get there.  During the deposition, I noticed that she wasn’t typing enough, based on my experience with court reporters.  I asked for a readback, and she said, “You know, I didn’t get that either.”  I asked for a readback from fifteen minutes earlier, from something I had in my notes, and her recording was insufficiently accurate.  I brought her outside the room and asked if there was a problem.  She said that the witness was, “Just SO GOOD LOOKING that she couldn’t concentrate.”  I called the court reporting service, who said that it would be two hours before another reporter could be sent.  I had a deposition pending in Chicago, so couldn’t wait for that.  What we did was turn the reporter around to face the opposite direction, so she couldn’t see the witness in front of her.  Viola.  Accurate reporting.  You can’t make this stuff up.

“D.C. Toedt” remembers an attorney getting caught by surprise…by his own witness:

I represented a corporate defendant in a patent infringement lawsuit.  I was starting the deposition of a non-party witness whose testimony would be important to the plaintiff’s proof of his date of invention. I started through the usual opening questions.  Have you ever testified at a trial?  No.  Have you ever testified at a deposition?  No.  Have you ever been convicted of a crime? No.  [At this point, there was something about the witness’s demeanor ....]  Have you ever been accused of a crime?  Yes.  What crime?  Attempted murder.  When?  My trial starts next Wednesday.  Whereupon the plaintiff’s lawyer asked for a brief recess—he was caught by surprise, even though it was his own witness.

From “C,” several memorable depos:

  • Depo of plaintiff in sex harassment case where claim was that harasser co-worker had erection at boring company meeting in conference room where he was the presenter!  Plaintiff’s attorney put pencil in his pants and moved to various angles asking plaintiff to confirm the degree and angle of alleged erection on record.
  • Plaintiff answered my question with asking if I was “the devil.”
  • Plaintiff’s attorney fell asleep.  I asked Plaintiff on the record how they felt about the fact that their attorney was asleep.  “Not very good.”

“Attorney X” depoed a woman who was on the mystical side of things:

My most memorable was the woman – next-door neighbor witness to a dispute over a house fire –  who had to arrange her stones and herbs around her to create a circle of spiritual safety before beginning to testify.

“BZ” had a client who took him very literally:

I once instructed a client, a dump truck driver, to only answer the questions he was asked. The questions and answers went like this:

Q. Could you tell me your name?
A. Yes.
Q.  Will you tell me your name?
A.  Yes?
Q.  When will you tell me your name?
A.  When you ask?
Q.  Could you please tell me your name?
A.  Yes.

This went on for twenty minutes until the lawyer finally asked :  “What is your name” only to then ask:
Q.  Could you tell me your address?
A. Yes.

I did not laugh but it was hard.

And, from “MartyMar” comes my favorite:

After advising my client, a 90-year old woman in a probate case, to always read any document in its entirety opposing counsel places before her before answering the question “Have you ever seen this document before”?”, my client followed my advise to the “T”.

During her deposition, opposing counsel handed my client a 23 page trust agreement and asked her if she has ever seen the agreement before.  My client politely takes out her bifocals and begins to read each and every word on each and every page.  After about an hour and a half, my client completely read the agreement and asks opposing to repeat his question.

Q. Have you ever seen this document before?

A. No.

(Opposing counsel’s client): This is some bullshit (referring to the hour and a half it took her to read the trust agreement..just to get a “No” response).

Tattoos: Free speech on your body

Tokyo Tatoo
Image by megabn via Flickr

While I suppose it would be plausible for other circuits to deal with tattoos as political speech, it’s really no surprise that it was the the U.S. Court of Appeals for the Ninth Circuit, in Anderson v. City of Hermosa Beach, that actually did.  And that found them to be speech.

Some legal context before a piece of the opinion: the First Amendment right to Free Speech is not unlimited.  Government can, in certain situations, regulate speech, and you see those situations referenced in the following section from the opinion, by Judge Bybee:

In sum, we hold that the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment. We further hold that the City’s total ban on tattoo parlors in Hermosa Beach is not a reasonable “time, place, or manner” restriction because it is substantially broader than necessary to achieve the City’s significant health and safety interests and because it entirely forecloses a unique and important method of expression. Moreover, no genuine issue of material fact exists with respect to the constitutionality of the regulation. Thus, we hold that Hermosa Beach Municipal Code § 17.06.070 is facially unconstitutional to the extent that it excludes tattoo parlors, and we reverse the district court’s order granting summary judgment in favor of the City and remand with instructions to grant Anderson’s motion for summary judgment and enjoin the City to include tattoo parlors in its zoning regulations.

Jonathon Alder, at the Volokh Conspiracy, included, in his review of the opinion, the concurring opinion of Judge Noonan, who wrote a separate concurring opinion:

I concur in the holding of the court, and I agree with Judge Bybee’s robust defense of the values protected by the First Amendment.

I write to state that tattooing may be purely expressive, not that it always is. Any text may be expressive but is not invariably so. A laundry list is normally not protected by the First Amendment, but William Carlos Williams made a grocery list into a poem. Context is all. A tattoo punitively affixed is unprotected.

Accepting the fact that a tattoo may qualify as protected speech, I note that creation of a tattoo may involve danger to the health of its recipient, so that tattooing requires regulation for health different from regulation, say, of a press. Tattooing as a business may also require regulation to assure that it does not attract minors. Finally, while we are bound to protect the First Amendment value at issue, we are not bound to recognize any special aesthetic, literary, or political value in the tattooist’s toil and trade.

(thx to How Appealing, via The Volokh Conspiracy)