My friend Joe Jacobson has often regaled folks on Facebook with his stories from the legal trenches. I love how Joe keeps an even keel and works hard to give others the benefit of the doubt, even when things get thorny.
I usually get along swimmingly with opposing counsel. The better they are at trial law, the easier it tends to be to get along. Today, however, I had a long difficult conversation with a young opposing attorney and I struggled to give the opposing attorney the benefit of the doubt. Here’s what happened. I hope you find this somewhat entertaining and doesn’t simply come across as whining.
Here’s the background: A federal judge appointed me to take over legal representation for a man who filed his own lawsuit alleging that he had been physically abused by prison guards. For technical reasons, only the guards are parties to the lawsuit, not the prison. I’ve taken a few depositions of individual witnesses, but I decided I needed a Rule 30(b)(6) “corporate representative” deposition of the prison to finish my discovery. This rule (30(b)(6) can be a power and powerful technique for learning information lodged in the inner belly of big organizations like prisons. Therefore, I sent out my subpoena and notice of corporate representative deposition last week, listing about 25 topics I wanted to discuss. The government attorney’s job is to fill the deposition chair with one or more witnesses who can answer my questions about those topics under oath.
Today’s phone call was from the government attorney, who was complaining about the way I set forth my topics. He annoyed me from the start with his know-it-all tone of voice. Here’s how the conversation went:
Atty: You can find information about Topic A somewhere in the (4,000) pages of records we already gave you, so Topic A is not proper.
EV: Wrong. I get to pick the topics, you need to provide witnesses who will answer questions regarding those topics. [For short, I’m going to call this “IGTPTTYNTPWWWAQRTT.”]
Atty: I would need to ask people at the prison about Topic B and it will take a lot of work, so that it not a proper topic.
EV: Wrong. IGTPTTYNTPWWWAQRTT
Atty: You can’t ask the prison to ask questions about its own policies and procedures. That’s calling for a legal conclusion.
EV: Wrong.
Atty: You can’t ask whether there is additional video of the incident. We already gave you some video.
EV: You did not produce video of the entire incident.
Atty: But we gave you video, and maybe there isn’t any further video.
EV: And maybe there is. I am entitled to ask whether there are additional videos.
Atty: You need to ask about Topic C in a written discovery, not a deposition.
EV: Wrong. IGTPTTYNTPWWWAQRTT
Atty: Other witnesses already commented on Topic D on during other depositions, so you can’t discuss this topic again.
EV: Wrong. IGTPTTYNTPWWWAQRTT
Atty: You need to tell me what questions you are planning to ask about Topic E.
EV: WRONG. IGTPTTYNTPWWWAQRTT. I don’t think you understand how Rule 30(b)(6) works.
ATTY: That’s insulting. And it’s improper to ask about Topic E, because the prison might not know the anwswer.
EV: Wrong. IGTPTTYNTPWWWAQRTT. And if the prison doesn’t know the answer it needs to state “We don’t know” under oath.
Atty: I don’t know if I can find an eyewitness to topic F. It might require someone to review prison records, so it is an improper topic.
EV: Wrong. IGTPTTYNTPWWWAQRTT. If you can’t find a witness who already knows the answer, you are required to educate a witness about that topic so that they can answer my questions.
Atty: I will give you an affidavit about Topic F, so it would be improper for you to ask any witness questions about that.
EV: Wrong. IGTPTTYNTPWWWAQRTT. Furthermore, I cannot use an affidavit at trial
Atty: That’s incorrect.
EV:. Have you ever tried a lawsuit?
Atty: That is highly insulting. It is a personal attack on me.
EV thinking: [The answer is negative . . ]
Atty: You’re asking me to prepare multiple witnesses for the deposition next month. You need to ask for a continuance of your trial.
EV: Not true. You’d better get started preparing those witnesses.
Sheesh. This went on for more than an hour. It’s not the exciting trial law you see on TV. Perhaps this post will serve as a public service announcement to discourage people from going to law school . . .
