Should California Limit Length of Depositions?

California Assembly Bill 1875 would limit the deposition time to 7  hours, thus mirroring the Federal Rule.  There is currently no limitation at all for cases pending in California state court.  Is the proposed 7 hour limit a good idea?

My experience tells me that most depositions in many kinds of cases can (and definitely should) be completed in less than 7 hours.  That said, I’ve had the issue repeatedly arise in employment discrimination and sexual harassment cases in which the plaintiff’s deposition cannot reasonably be completed in 7  hours.  In fact, the plaintiff’s deposition in a sexual harassment case involving multiple instances of conduct allegedly occurring over the course of 3 years could not be reasonably completed in less than 20 hours.

The good news with this California legislation is that it would exempt cases involving employment issues or which are deemed complex.  It would provide the parties a choice to opt-out by stipulation.  Expert depositions would also be exempt from the limitation.

The stated purpose of the bill is to prevent attorneys from deliberately using the deposition to harass a party or witness or needlessly increasing the litigation costs of a case.  I’m not so sure.  While I’ve felt that some attorneys could be more organized with their examination and sometimes they seem to dwell on areas that ultimately bear no fruit, it is important that examiners not feel unduly rushed or constricted.  I could probably count on one finger or less the number of times I’ve honestly felt that an examiner was dragging out a deposition for a purpose other than legitimate fact gathering.  As far as harassment goes, I bet most people find the entire deposition process to be an exercise in harassment.  A lawyer intent upon harassing a deponent can do so as easily in 7 hours as 10, so is the law necessary?

On balance, I think members of the bar should think and act like professionals.  We should not engage in harassing behavior.  Nor should we drag out the length of a deposition unnecessarily.  If somebody gets out of line, there are remedies available, including a protective order and/or sanctions.  But I’d like to think we can govern ourselves without the need to be overregulated.  So let us decide for ourselves how long it takes to complete a deposition.

Oh, and please don’t ask after the first hour how long I think I’ll take for my examination.  That is just soooo annoying.

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Civility Doesn’t Mean Blowing Hot And Cold

I used to think it was a worthy skill unique to litigators: the ability to be harsh and aggressive when it seemed appropriate in the course of representing a client (in a deposition, for instance), but turning immediately friendly and professional as soon as we’d gone off the record and there was no question or objection pending.  After all, didn’t it show that, as lawyers, we were in complete control of our emotions when we could turn our temper on and off, like John McEnroe at a Wimbledon final?

I’ve come to think differently now.  I just finished a deposition with a crusty older litigator and I found his penchant for blowing hot and cold disconcerting.  I was not doing the questioning, but while we were on the record he would make frequent, loud outbursts at the female lawyer conducting the deposition of his client.  She, too, was seasoned and seemed unfazed by his temper, though she did ask him a few times not to yell at her.  When we took breaks, he would almost instantly turn cordial, asking her where she lived, about her kids, etc.  She played along, as though such vacillation of temperament was the most natural thing in the world.

The rules of ethics and most judges expect lawyers on both sides of a case to treat each other with “civility.”  Are loud, threatening outbursts transformed into civility just because we change from bad cop into good cop when aggressivity is no longer called for?  I don’t think so.  Certainly there are going to be times during a deposition, negotiation or even a hearing when zealous representation calls for us to “kick it up a notch,” and establish a line we don’t expect will be crossed.  But I doubt the experienced lawyer making the loud outbursts during the deposition would have behaved the same way during a trial–even a bench trial.  So, why should he behave any differently just because there’s no judge or jury present?

I’ve been guilty of this in the past, though I always found it more difficult to instantly change from nasty bad cop to friendly good cop.  When our communications turned cordial, I usually felt inauthentic.  At the end of a full day of this, I was invariably exhausted.  I still get riled sometimes, but I try (not always successfully, I admit) to maintain civility even when I feel my opponent is being unreasonable.  I suspect, though I have no evidence to back it up, that litigators would live longer, happier lives if we could just cut out the vacillation between hot and cold and just treat each other civilly all the time instead.

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Don’t Serve Discovery Unless You’re Willing to Go to the Mat: One Caveat

Yesterday I wrote about why discovery should be limited to questions or requests which are directly calculated to lead to useful information.  I just need point out a single exception to this view:  discovery through depositions.

Depositions (live question and answer sessions, recorded by a stenographer, in which a witness is sworn to testify under oath) present an unparalleled opportunity to gather useful evidence.  But I’ve found that sometimes it’s necessary to ask a few (or several) extra questions to get the kernel of information you’re looking for (or didn’t realize you were looking for).

Certainly depositions should not be an exercise in free association thinking.  Whether the questioning attorney uses an outline or not, there is no question that preparation is needed and you should have a very clear idea going into the deposition what you’re trying to establish.  But, beyond establishing exactly what you’re looking to establish, don’t be afraid to explore topics in greater–even random–detail.  I’ve seen caselaw suggesting that discovery should not be a “fishing expedition.”  When it comes to depositions, I disagree.  Don’t be afraid to “fish.”

The most important skill in taking depositions is not asking clever questions, but listening.  Only by listening closely, not only to the substance of the responses, but also to intonation, hesitation and a constellation of other emotional “cues,” can we recognize when we might be “closing in” on a sensitive topic.  Why is it a sensitive topic?  We’ll never know unless we ask the question, and a follow-up question, and another, until we explore it fully.  This take patience and persistence.

This makes depositions longer and more costly, which flies in the face of my typical mantra to simplify and be more lean and cost-effective.  But there are times that loose, creative deposition questioning will lead to evidence we would never discover any other way.  The big reason these loose, unfocused questions can yield better results than a response to written discovery is that written responses are always “filtered” through the mind of (or completely conceived and written by) the witness’s lawyer.  That filter is generally missing in a deposition.

Even with this caveat, however, my view remains that any kind of discovery–depositions or written questions or requests–should only be undertaken strategically.  While written discovery typically yields information that is carefully choreographed by attorneys, deposition questions can yield important, game-changing evidence precisely because the information is not mediated through the mind of a lawyer.  In other words, you have to dig deep to find the gold!

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