Depositions: How not to behave at defendant’s deposition

From the Daily News:

Billionaire attacked by fiery ex

George Soros’s ex-girlfriend went berserk during a routine legal meeting, lunging at the 83-year-old billionaire, smacking him in the head and attacking his lawyers.

Adriana Ferreyr, a 30-year-old Brazilian soap actress, shouted, “A–hole! You piece of s—!” at Soros when he passed her during a break in the investor’s deposition on Tuesday, papers filed in Manhattan Supreme Court papers [sic] state.

Soros was answering questions under oath at her lawyer’s Midtown office as part of her $1.9 million suit against Soros for allegedly failing to make good on his promise of giving her an Upper East Side apartment. When the lawyers agreed to break for lunch, Ferreyr “suddenly and without warning … lunged at Mr. Soros and struck his head with her hands,” Soros’ lawyer said in the court papers. — Barbara Ross

What a gift this is to Sidebar! An actual experiential example of an important stage in a lawsuit — depositions.

I’m not going to analyze why Ms. Ferreyr did what she did but I must emphatically warn all plaintiffs not to duplicate her “performance” — it must be a performance, mustn’t it? After all, she’s a soap opera actress — when your lawyer deposes your defendant.

A deposition is an utterly unnatural life situation but an utterly valuable part of the legal process, so it behooves all of us who participate to behave appropriately, even if “appropriate behavior” feels like we’re wearing an iron mask.

Simple rules for plaintiff behavior at defendant’s deposition:

  • The defendant’s deposition will be conducted by your lawyer, usually in your lawyer’s conference room. Get there when your lawyer tells you to — at least 15 minutes before the deposition is scheduled to begin. If you get there early, you will probably not have to pass your defendant or his lawyer in the reception area. But if you do, you can nod politely or ignore them. Politely.
  • Before the defendant and his lawyer are brought into the room where the deposition will be held, your lawyer will bring you in and tell you where to sit, usually next to her.  Sit. Good.
  • Say hi to the court stenographer who has her computer and related equipment gathered around where she sits at the table. She’s the only person other than your lawyer whom you get to chat to. Other than these two people, you must not say one word, unless your lawyer asks you a question.
  • When your lawyer is ready, she will escort the defendant and his lawyer into the conference room and indicate where she wants them to sit. They sit. Good.
  • You are now undoubtedly facing your defendant, i.e., your enemy. Here’s where the behavior rules are weird and difficult, because in ordinary situations, you would perhaps glare, make faces, say stuff or at least respond to stuff said to you. You don’t do that here.
  • Poker face poker face poker face.
  • Your lawyer may have explained to you that a deposition is not the Inquisition. Ergo, she will not present herself as a monster. In fact, since one object of a deposition is to get the deponent to explain his view of the case — which could and should include evading or denying or inventing facts, i.e., lying — your lawyer might take on an ultra-pleasant, even seemingly conciliatory personality to draw him out. There may be times when everybody is chuckling or exchanging warm smiles, etc. That is, everybody but you. It feels strange but your lawyer has not joined the enemy. She is using the enemy’s weaknesses against him. She’s getting him to relax, let down his guard, feel that she’s on his side, that she likes him. She’s paying devoted attention to him — he’s The Star and he eats that up, doesn’t he? So he talks and postures and answers questions and expands grandly upon episodes, conversations, incidents for which, as you well know, he has no proof.
  • You’ve got a notepad in front of you, of course, so you can make notes about any twists in truth you’ve picked up or something you think your lawyer might want to follow up on. But don’t let anybody see those notes and don’t dive too enthusiastically into making a note, lest your defendant be warned that he’s said something that pleases you a lot. Keep your face blank and your note-taking cool and calm.
  • So you sit there with a poker face (and a poker pen). Oh, I’ll let you do an occasional little smile, maybe only on one side of your mouth, if your defendant makes a really outrageous statement. But never never let the surface of your face show your recognition of a lie, even an egregious one.
  • When you read the deposition transcript, you’ll see how much your lawyer got out of your enemy by being friendly and low-key.
  • And when you take breaks, I don’t have to tell you not to pursue your defendant down the hall, call him an asshole and a piece of shit, and “smacking him in the head” and “attacking his lawyers.”

I don’t have to tell you that, right?

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