Why wouldn’t a lawyer attend his client’s deposition?

It seems silly not to attend an important deposition in person, particularly when the deponent is your client.

Everyone knows that plaintiff’s attorneys and defense lawyers think differently, both in the way that they litigate cases but also in the manner in which they approach the handling of those cases.  Further, both sides operate on dissimilar  economic models, and accordingly, that distinction affects the manner in which they pursue their claims of defenses.  This is also why the two different sides of the bar do not always see eye to eye.

Once, many years ago, I was defending a series of mass tort cases.  At the time, I was practicing in Southeast Texas, and we were deposing plaintiffs all across the state.  On one such occasion, I flew from Southeast Texas to Amarillo, Texas,  not an immense jaunt, but not a short trip, either. Because of the nature of the mass tort cases, the plaintiffs had already responded to written discovery and provided initial fact sheets detailing their personal backgrounds and alleged injuries.  As neither I nor the plaintiff’s attorney maintained an office in Amarillo, we noticed the deposition for the conference room at an upscale hotel in town.  I don’t recall if I flew up the night before or caught an early flight from Houston to Amarillo, but as I typically do, I arrived at the deposition at least a half hour early to review my notes and get into character.  Also, as per usual, the court reporter arrived relatively early to set up the stenography equipment.  In the room, we discovered the plaintiff, sitting alone, with a telephone sitting on the conference table.  Shortly before the deposition, the telephone rang.  I answered. It was the plaintiff’s lawyer, calling to relate that he would not be attending in person but would be participating by phone.  Further, from the initial discussion in the room, it appeared that the plaintiff’s lawyer had not yet met his client in person (the tip off was when I walked in the door she asked if I was her lawyer.)  The court reporter and I left the room briefly so that the plaintiff’s attorney could speak privately with his client, presumably to prepare her for the lengthy deposition.

I’ve always wondered why it was that the plaintiff’s lawyer in that case made that decision to attend his client’s deposition by telephone.  From my perspective, it makes no sense.  First, and foremost, a personal injury plaintiff is typically an unsophisticated litigant; he or she has usually never brought a suit before. He or she is generally unfamiliar with the litigation process.  Accordingly, I suspect that most of them would be somewhat nervous prior to something like a deposition.  So, it would make sense that his or her attorney would be present in the room to defend the deposition and to assuage any concerns that the client might have about the process.

Additionally, there are other reasons to be present for a deposition.  If you are hundreds of miles away from the deposition and attending by phone, you may not have access to the exhibits that are being introduced into evidence.  If you do not alert your opponent that you will be attending by phone, then opposing counsel may not know to provide copies before hand, or if the rules require, simultaneously with the entry of the exhibit into the record.

Quite simply, there are too many things left to chance if one does not attend the deposition, and the deposition of one’s client seems to be something that one must attend in person.  After all, if the client performs poorly, or the plaintiff offers testimony which threatens his or her claim, it would seem that the the attorney’s absence would be of particular interest to a lawyer in a subsequent proceeding alleging potential malpractice.

Comments

  1. Egads. I’ve never done that, though I did once remain in Philadelphia (with defense counsel) while we did a videoconference deposition of my client in California. He was a sophisticated businessman, though, and the deposition was unlikely to uncover anything unexpected.

    Might I ask about the plaintiff and his claimed injuries? I suppose I can see the reasoning here if it’s a mass tort and the client has a very low value case. Bear in mind, if the plaintiff’s lawyer flies out there, he charges that to the client’s file, which means it comes out of the client’s recovery at the end. Some of the mass torts cases end up with clients who have cases below $10k in value; once you’re talking that amount, avoiding an additional $300-$800 for the trip makes sense.

  2. One thought comes to mind: lack of care. At least have some common courtesy to say “hey I’m not coming” instead of leaving your client guessing “are you my lawyer?” Sigh.

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