The Most Important Unwritten Rule: Depositions Should Start at 10:00 AM

We, as lawyers, learn many, many rules from many, many texts, including statutes, cases, regulations, and such.  But what allows a practitioner to rise above the rest is his or her knowledge of the unwritten customs of the practice of law.  These practices vary from jurisdiction to jurisdiction, state to state. The most universal of them all, though, is the old familiar rule:  no depositions should start before 10:00 AM local time. Really, this informal custom is part of the glue that holds our profession together.

Really, this should be incorporated into some future draft of the state and federal rules of civil procedure.  Generally, most lawyers follow this unwritten custom, taking into account the fact that colleagues planning to attend a deposition may want to stop by their own office first or travel from another city before arriving at a deposition.  The standard 10:00 AM start time even permits an attorney flying in from a far away jurisdiction to possibly catch an early flight and arrive on time.  If not, this standard start time allows those who fly in the night before to accustom themselves to their new surroundings and make it to the deposition without unnecessary haste. All in all, the custom preserves some level of peace and tranquility.

I raise this issue because lately I have seen a number of notices calling for the deposition to begin at – gasp – 9:00 AM.  Oh, the humanity! Mind you, these instances were not circumstances where the deposition needed to start earlier than 10:00 AM. Rather, the noticing party just decided to set the deposition start time at 9:00 AM. Alas. Of course, there are exceptions to the informal rule, typically doctor depositions, because physicians may only be able to present themselves at some unusual time before or after business hours. And, of course, there’s always the occasional witness who may only be available at some strange and unusual time. But generally, depositions should start at 10:00 AM.  No question.

Comments

  1. I think a survey should be taken of all practicing litigators, asking a single question: “have you ever been to a 9 AM deposition that started at 9 AM?” The 10 AM rule is typically enforced through civil disobedience to earlier times. The only time you have an earlier deposition is if multiple lawyers are traveling to the site and multiple depositions have to take place, to ensure everybody gets finished in the allotted number of days.

    On the same subject, a “brief” deposition should not begin after 2 PM. A “brief” or “just a few questions” deposition can easily turn into a one or two-hour deposition, but usually not a three-hour deposition.

    While we’re on the same subject, I’ve noticed a disturbing number of lawyers who think it shows dedication for them to cheerfully suggest that a late-running deposition should continue past 5 PM, potentially continuing late into the night. The lawyer on the other side of this request will usually agree, given that their own dedication has been called into question by the challenge.

    Before you do something like this, ask yourself: who in this room needs to pick up their kids from school or has to make dinner? Odds are, if you’re the one pushing for the late-night deposition session, then you have just made yourself an enemy out of that person.

  2. I was recently asked to interpret a deposition at 9 AM, and the agency asking me to come did not attempt to negotiate the time, despite the fact that they knew I was coming from 3 hours away (2 hours of driving, one timezone). The agency then asked if I could arrive an hour beforehand to go over the background of the case–without payment.

    Do I need to mention I declined the assignment?

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