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How Lawyers Can Avoid Getting Killed During a Deposition

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By Jonathan R. Tung, Esq. on December 15, 2015 2:57 PM

Depositions can get very emotional, to say the least. The emotional range seems to span the gamut from boredom to intense rage.

But the usual emotion is guarded anger -- remember Justin Bieber's depo? Sometimes that anger can rise to the level of uncontrollable rage. A careful lawyer has got to ask: what steps can you take to protect yourself from a potential attack?

Lawyers Attacked in Depositions

A lawyer I used to work with once described how he was attacked in a deposition. The case involved the breach of contract by the seller on the sale of property. We represented the buyer. During the deposition, my colleague asked the deponent about impeaching character evidence; in response, the deponent lunged across the table, grabbed my colleague's tie and was about ready to throw a punch. Apparently that question hit a nerve.

Steps to Protect Yourself

No harm can be completely guarded against, but reasonable precautions can be taken. In fact, maybe even the non-participants should take preventative steps.

  • Keep a Distance: Depending on what your gut feeling says about the deponent, you should always consider leaving some distance between you and the person you're deposing. This was the (innocent) mistake my colleague made. If the table is short enough to allow a deponent to reach across the table and grab your tie, it's probably too short. Being chummy with a hostile witness can be a big gamble.
  • Wear Protective Clothing: This may sound over-the-top, but welcome to the world of law. As far as we know, there is no legal prohibition against wearing bullet-proof vests or Kevlar while entering a deposition room. For some areas of law, this seems to be particularly advisable. The grapevine actually says that family law can be extremely deadly, with people who once took vows to-have-and-to-hold now out for blood -- anyone's.
  • Reschedule: Sometimes, the deposing attorney must learn to choose his battles. A bullet proof vest won't protect you from about a million volts jammed in your face. When Douglas Crawford represented himself pro-se, he walked himself over to opposing counsel and unsheathed both a can of pepper spray and a stun gun, shoved them in OC's face and issued stern warnings to watch it. Wisely, OC decided to cancel the deposition. You do not want to step into a room with that sort of crazy.

These steps are merely prophylaxis. Depositions need to be done, and if anything, a heated and passionate response will help root out the truth, motives, character issues and will most likely be admissible on two separate theories -- it's testimony given under oath, and bypasses evidence's hearsay hurtles.

Attorneys need to attend and give depositions. But they also need to stay alive another day. It's a numbers game. You can't completely avoid the danger. But we would suggest that if you like your law nice and friendly, you should probably stay out of family law.

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