Depositions: “Can I talk at deposition?”

That’s a search string I just got.

The answer: Yes. At your deposition.

I’m getting the feeling that a lot of people have been learning law from the USA cable show, Suits, paying way too much attention to the dramatizations of unrealistically frequent depositions.

Now I myself am madly in love with Suits but not because it replicates the stuff that goes on at any law firm. It doesn’t. It’s fiction. (For one thing, I’ve never been in a law firm where all the women wear 6-inch heels and those marvelous, shapely dresses — how do they get into them? How do they zip them up? How do they walk and sit and talk? I guess Suits only apply to the males in the show.)

Suits depositions are ever so entertaining but here’s what doesn’t (or does) happen during real depositions:

  • All sorts of people do not wander in and out.
  • Not everybody sitting around the conference room table gets to talk. (So no, sorry, you don’t get to express yourself, even in dazzling dialogue, during the deposition of your opponent. I’ve written about what you do get to do, and should do.)
  • There usually aren’t as many depositions in a lawsuit as Suits conducts, and they don’t take place at any old time, especially not five minutes after we the audience have learned that there’s a contention. Lawyers don’t tell each other, “Let’s depose him,” at the drop of a hat and then, at the drop of another hat, get that person into a conference room in front of a stenographer.
  • And the lawyer representing the deponent is severely limited in what he can say during the deposition. So in a real deposition, you don’t get Gabriel Macht or Eric Close openly arguing with each other over strategic issues that are not pertinent to the deposition itself.
  • The lawyer conducting the deposition can ask many questions that perhaps will not be permitted during trial.
  • And the opposing lawyer representing the deponent cannot interrupt the deposition. He can’t shout, “I won’t let my client answer that question,” he can’t object to the question, he can’t answer it himself, he can’t stalk out, he can’t wallop the guy across the table… The opposing lawyer is strictly limited as to what he can say during his client’s deposition to the specific rules about depositions in Civil Practice Laws and Rules. Basically, he can say, “Objection as to form.” That’s a message to his client: “Watch out for this question, there are dangers within it.” But he can’t direct the client not to answer the question during the deposition. Yeah, he can make a big stink about the question, call it “improper,” insist on getting the judge’s ruling … but that will simply be stalling tactics, probably to give his client time to think about his answer.
  • Here are some of New York’s CPLR rules governing depositions (reminder: Suits takes place presumably in New York). I’ve bolded some sections about who gets to talk and who gets to say or not say what:

IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for the respective parties herein as follows:

All rights provided by the CPLR and Part 221 of the Uniform Rules for the Conduct of Depositions, including the right to object to any question except as to form, or such other irregularity that would be waived if not interposed, or to move to strike any testimony at this examination is reserved.

No objections shall be made at a deposition except those which, pursuant to subdivision (b), (c) or (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not interposed, and except in compliance with subdivision (e) of such rule. All objections made at a deposition shall be noted by the officer before which the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR.

Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning.

A deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person. An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefore. If the deponent does not answer a question, the examining party shall have the right to complete the remainder of the deposition.

An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in section 221.2 of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly.


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