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.

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.

Critical Thoughts on Depositions of Asbestos Plaintiffs

We recently ran across a blog entry regarding the death of an asbestos/mesothieloma plaintiff whose lawyers and doctors contend that a 25-hour deposition sought by the defendants killed him. The blog quotes this disturbing L.A. Times column by Michael Hiltzik, entitled, “Mesothelioma victims deserve better than wasteful legal maneuvers.”  Here’s the relevant portion of Hilztik’s piece:

Here’s the horrific question now: Did asbestos industry lawyers deliberately drive Johnson to his death by putting him through a brutal series of depositions so their clients would save money?

That’s what his family, his doctor and his lawyers assert. Despite affidavits from his doctor stating that 12 hours of depositions over a few weeks would be about as much as the 69-year-old’s health could stand, a Los Angeles Superior Court judge allowed the companies he was suing a total of 25 hours.

Johnson put off returning to the hospital so he could appear at every session, including the last, on Jan. 23. His face contorted in pain, he gasped out answers to questions from the last of the dozens of defense attorneys in attendance. Less than 40 minutes later, he collapsed.

The very next day he died at Hoag Memorial Hospital in Newport Beach. With him died his family’s claims for pain and suffering, mental anguish and bodily disfigurement, reducing their potential recovery in or out of court by as much as 70%, in the assessment of his attorney, Roger Worthington. What’s left are chiefly claims for medical bills and lost wages and for his wife’s loss of his companionship.

Johnson’s family, his lawyers, and his doctor have no doubt that the defense lawyers stretched out the legal process through what the family contends in court were “delay tactics and stalling,” in the expectation that he would die before he reached the finish line.

This is a very serious allegation, and the column in question, in suggesting that the conduct of the defense attorneys may have played a role in the death of the plaintiff, did not provide a full context of mesothieloma products liability cases and the litigation thereof. The column – which notes that California allows 20 hour depositions in asbestos cases – suggests that the default rules in federal court (7 hours) may have been more appropriate.  However, the default rule is exactly that – a default – which can and should be modified when necessary.  A civil case involving a single plaintiff, a single defendant, and a single trauma merits less discovery – and shorter depositions – than one in which a plaintiff’s entire career history must be explored in detail.  To offer context, we must explore why asbestos depositions merit more time than those in other, simpler cases.

First and foremost, a typical asbestos plaintiff sues dozens and dozens and dozens of product manufacturers.  (Hiltzik does note that the plaintiff in question initially sued 65 companies in his products liability suit, a number which was later reduced to 44 defendants). Sometimes, these plaintiffs also sue outside contractors who would have worked at plants where they, the plaintiffs, once worked.  All of these defendants are different – - they are makers of entirely different products, and on many occasions, their products are similar enough to where questioning is needed to distinguish which products a plaintiff actually worked with or near.  It goes without saying that each defendant in a case is entitled to explore the allegations against it in any lawsuit brought by a plaintiff.  However, this task is made very difficult in asbestos cases because of the nature of the claims being made.

It is critical to note that asbestos plaintiffs often claim that they were exposed to asbestos over the course of a multi-decade career.  It is not unusual for a plaintiff to allege that he was exposed to products over a 40 or 50 year career during the span of his life.  (Hitzlik reports that the plaintiff worked “as a carpenter, auto mechanic and plumber from 1961 until 1990.”). Because each work site during a plaintiff’s career is the potential exposure site, those sites must be explored in detail.  Further, because many of these plaintiffs typically worked at manufacturing or energy production plants, even if they worked for a single corporation during a long span of time, they often worked at many different plants and facilities owned and operated by their former employers, and each plant or facility may house or contain very different products. This information is critical to defendants because it may be that at a particular time at a particular location their products were unavailable or non-asbestos containing. Obviously, when there are 20 to 30 to 40 defendants, and each defendant has a different set of questions to ask about a different set of products, a deposition will be lengthy.  First, the counsel taking lead on the deposition will survey the plaintiff’s entire career to determine where he alleges he was exposed to asbestos.  That lead counsel will typically ask specific questions about the products his client manufacturers and leave to the other lawyers the task of asking about their own client’s products.  Once the lead lawyer completes his examination, the other lawyers take their turn.  Cutting off the deposition at seven hours would leave many lawyers without the opportunity to ask any questions whatsoever despite the fact that their clients have been sued.

So what are the potential remedies if a plaintiff is too ill to be deposed? Typically, the plaintiff himself is the only individual who can testify with some level of certainty as to where he worked and when.  It’s hard to find witnesses who can testify about products used at a facility decades and decades ago. So, how would defense counsel learn that information if not directly from the plaintiff? Plaintiff’s counsel could alleviate this issue by being more specific in the complaint and discovery responses drafted on behalf of their clients.  Unfortunately, many state court – and even federal court – complaints in asbestos cases simply list each defendant and then generally allege that at some point during the plaintiff’s career and/or life he was exposed to products manufactured by those defendants.  The complaints rarely  allege which products manufactured by those defendants the plaintiff worked with or near, nor do they generally list the specific time frames or locations where a particular defendant’s products are at issue.  This leaves the defendants without much information to investigate the claims against it. Further, the plaintiff’s written discovery responses are typically unhelpful, as well.  Again, written discovery may allege the type of product manufactured by a corporate defendant which the plaintiff worked with or near – a valve, a boiler, a gasket, a sealant, or something of that variety – but it still typically does not provide any more specific information than that (including the years that the plaintiff would have worked around that type of product). As another way to shorten the need for a lengthy deposition, plaintiff’s counsel could sue fewer defendants – perhaps they could sue the defendants whose products they know may have been at issue rather than those they simply suspect do.

It may be that the plaintiff does not know the particular model or brand of the products they worked with or near; but many asbestos plaintiffs’ firms have done a bit of research into these issues and typically represent clients who worked at the same locations.  It seems as if plaintiff’s firms prosecuting mesothieloma asbestos cases either have to high a volume or to enumerate a specific products at issue or maintain a philosophy of suing everyone and then the defendants prove their way out.  Either way, the only way that a defendant can learn whether its products were at issue is to ask the plaintiff directly.

So, as noted above, there are many, many reasons why asbestos depositions last longer than more traditional ones. Perhaps, Plaintiff’s counsel in these cases could provide a bit more information about the allegations in their complaints earlier in the process to obviate the need for extensive questioning, but if present trends continue, that certainly seems unlikely.

(Hat Tip: Max Kennerly).

“Objection, Form” v. “Object to the Form”

As lawyers, and more importantly, as bloggers, we here at Abnormal Use are huge nerds.  Accordingly, we sometimes lose sight of the forest for the trees and develop silly idiosyncrasies based on our interpretation of legal minutiae.  Today, we write of one such quirk: objections to the form of questions at depositions.

This writer attended Baylor Law School, an institution which focuses on practical education and teaches discovery and deposition techniques in a mandatory third year series of courses.  It was then that this writer learned of Texas Rule of Civil Procedure 199.5(e), which provides that objections to the form of a question must be made at depositions. All other objections are reserved. Form objections shall be made using the following statements:  ”Objection, leading” and “Objection, form.”  Note that the terms contemplated by the rules are in quotation marks.  In its own words, the rule itself provides:

Objections to questions during the oral deposition are limited to “Objection,leading” and “Objection, form.” Objections to testimony during the oral deposition are limited to “Objection, non-responsive.” These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court.

Practicing several years in Texas, this writer always made the objections as stated in the rule.  It would have been splendidly nerdy to argue to a trial court that an opposing party had waived an objection by not stating it as it was quoted directly in the rule (which the rule itself states expressly).  What hypertechnical procedural fun that would have produced! After all, the use of quotation marks suggests that the objection itself must be verbatim and not a paraphrase, and the rule provides that “objections are waived if not stated as phrased.”  However, the judicial scorn likely to be prompted by that argument always deterred this writer.

But here is the aforementioned  nerdy pet peeve.  Throughout our career, in whatever state, and in whatever jurisdiction, this writer has always said “Objection, form.”  Call it habit, call it nostalgia, call it blind adherence to an old rule, call it what you will.  Inevitably, though, when the transcript arrives back from the court reporting service, our objection is almost always transcribed as “Object to the form” which, of course, would have been (presumably) waived under the Texas rule.  Perhaps the court reporters simply have some type of button or macro on their systems which inserts a form objection on to the record irrespective of the precise manner in which the attorney articulated it.  That obviously would not work for longer detailed objections, but for basic form objections, maybe that is the reason.  However, we have always wondered why it is that our “Objection, form” never seems to survive the day of the deposition.

Hey, we told you it was a nerdy pet peeve.  You were warned.

The Perils of Making Pop Culture References at Depositions

Depositions can be funny. One of the joys of being a member of the Texas Bar is receiving the Texas Bar Journal, which always included the famed “Et Cetera” column by the late U.S. District Judge Jerry Buchmeyer, who offered amusing moments and excerpts from litigation.  For years and years and years, Judge Buchmeyer collected funny quips and quotes from deposition transcripts, trial pleadings, and trials and published them in his column.  In fact, his column became so popular, that whenever anyone flubbed a question during a deposition, someone would inevitably remark, “That’s one for Buchmeyer.” Sadly, Judge Buchmeyer passed away in 2009, but the world can enjoy his columns at the Texas Bar Journal’s website here.

We always wanted to submit something to the column but never had the opportunity.  Recently, though, something happened at a deposition that we – and apparently only we – thought was amusing.  Here is an excerpt from a recent toxic tort deposition:

Q     Do you know whether or not the specifications that were discussed were altered at any time after the summer of 1969?

A     No, sir.  I don’t know.

Q     So you have no personal knowledge of any subsequent negotiations which may or may not have occurred after the summer ’69.  Is that correct?

A     Correct.

Q     Summer of ’69. Somebody needs to make a Bryan Adams reference here, I think.

After that remark, though, there were crickets in the room.  Crickets! When we received the transcript, we turned to the relevant page to see if the court reporter had added, “Whereupon, there were the sounds of crickets.” Worse was the deafening nature of the silence! From both those assembled in the room and those attending the deposition by telephone! The attempt at humor fell flat, but it seemed so clever to us in our own minds! How can one discuss the summer of 1969 without referencing the old song by Bryan Adams? Oh, well. Maybe this deposition excerpt would not have been one for Judge Buchmeyer’s column, but how can one resist making a pop culture reference under those circumstances? How could anyone? Oh, bah, humbug.

The Ultimate Disguise Might Win a Halloween Costume Contest, But It Won’t Win Points With a Judge

In our practice, we have definitely encountered more than one deponent who, upon learning that his or her deposition was going to be recorded by videotape, was less than thrilled by the prospect. Fortunately for us, we have never seen someone like Joseph P. Bertand, a plaintiff who went to extraordinary lengths to avoid giving a deposition in his lawsuit. See Bertrand v. Yellow Transp., Inc., et al., No.: 3:08-01123, 2010 WL 2169499 (M.D. Tenn. May 28, 2010), . While Bertrand is an employment law case, we found his antics so amusing that we had to share.

Mr. Bertrand, acting pro se (which will be no surprise to anyone after reading the order issued by the District Court in this case), filed a litany of claims against the defendants arising from what he contended was his retaliatory termination from his employment with Yellow Transportation. He complained of racial discrimination, sex-based discrimination, national origin discrimination, violations of the Family and Medical Leave Act, defamation and sexual harassment. I feel certain that at the very outset of this lawsuit, there was little doubt that anything about his case would go smoothly. After Mr. Bertrand repeatedly tried to unilaterally notice depositions rather than consulting with opposing counsel as a courtesy, the Court issued an order requiring that the parties cooperate with each other in scheduling convenient dates for depositions. Pursuant to the order, and after consultation, Mr. Bertrand agreed to be deposed on October 6, 2009. Several days after receiving his deposition notice, however, Mr. Bertrand realized that it provided for the videotaping of his deposition, prompting him to notify defendants of his objection.

Mr. Bertrand was not satisfied with defendants’ explanation that they were allowed to take his deposition by videotape, and he filed a motion for a protective order against the videotaping, complete with 67 pages of documents. Among Mr. Bertrand’s objections were references to elusive “sealed agreements” that he had with defendants regarding the recording of depositions, suspicions that the defendants would post the video on the world-wide web for all to see, or even that defendants could steal his identity once they had his image. Despite multiple attempts to contact Mr. Bertrand without success regarding his motion and no showing of a reason why the deposition could not be videotaped, the Court ordered that his deposition proceed.

On October 6th, Mr. Bertrand dutifully appeared as scheduled, albeit wearing all black and several layers of clothing, with the outermost garment appearing to be a large nylon athletic top with a hood that he donned on his head. Mr. Bertrand also wore a large black, bushy wig covering his entire forehead down to his black sunglasses, a fake bushy mustache and a beard. In all, Mr. Bertrand’s face was completely hidden, with his disguise even impeding his ability to speak as he had to keep moving his false mustache out of his teeth. The only victory after 40 minutes of negotiations was to get Mr. Bertrand to remove his sunglasses. The deposition was suspended and later followed by a Motion to Dismiss filed by the defendants as a discovery sanction or, alternatively, for a Motion to Compel Mr. Bertrand’s deposition.

Mr. Bertrand’s response (no surprise here) told a very different story. He noted that the videotaped deposition might have been a pornography filming session masquerading as a court ordered deposition! He even claimed that the defendants’ attorney wanted to sexually harass him by begging Mr. Bertrand to remove some of his clothing and hair, which Mr. Bertrand claimed to take as unwanted sexual requests. Among his myriad of other excuses were complaints about the age and quality of the video equipment and that the lighting was extremely bright and caused heat-induced headaches.

While the Court did not dismiss the action at that time, it entered an order compelling Mr. Bertrand to appear for a videotaped deposition in the judge’s chambers on a mutually agreeable date within 30 days of the order. The next 30 days passed, however, without any contact with the Court to schedule the deposition in chambers, whereupon the defendants again filed a Motion to Dismiss. The Court learned that during that 30-day period, Mr. Bertrand filed five motions calculated to delay or thwart his deposition, including a motion to allow him to face away from the video camera and “blinding” lights to avoid the high heat, thermal radiation, electromagnetic radiation, and black body radiation and to protect his eyes from at least temporary retinal burn, welder’s flash and snow blindness. Another motion sought to prevent the defendants from setting the video to music or to filming in color. Further objections were based on health reasons, including high blood pressure and a non-cancerous growth on Mr. Bertrand’s eye. Naturally, he failed to explain how those conditions would impacted by a videotaped deposition.

Mr. Bertrand’s actions finally led to the dismissal of his lawsuit on May 28, 2010. The reasoning of the Court is instructive to practitioners encountering difficult litigants. The Court reasoned that the plaintiff had disobeyed multiple discovery orders and had abused the judicial process by filing multiple frivolous motions. The frivolous motions were held to be akin to abuse of the judicial process from the filing of frivolous lawsuits. Each of Mr. Bertrand’s filings had little to do with the merits of the case, but instead related to tangential issues.

While we are certain that the defendants and their counsel are now breathing a long sigh of relief, we would wager that they may not have heard the last of Mr. Bertrand. He certainly does not strike us as a quitter!

We often fondly reflect back on our own tales of strange encounters and unusual antics by opposing parties and do not tire of telling those war stories (Like, for instance, our deposition during which a widow proceeded to carry on a conversation with her husband’s ashes, which she brought with her in a duffel bag, and the time when a deponent proceeded to “diaper” an urn containing the ashes of a deceased pet monkey. Yes – Those are both true stories.) We are sure that defense counsel in Mr. Bertrand’s case will be telling this story for years to come. We know that we would.