TO WIT: WORLD ENOUGH AND TIME
You know what the most horrific lawyering experience is? No, it's not dealing with the pro se defendant whose pleadings are unintelligible; it's not the key witness who gets struck dumb by aphasia on the witness stand; and it's not the judge who resents everyone who passed the bar exam first time out. Unpleasant as those are, they pale by comparison to that sin- gular experience of being trapped in a deposition being taken by an inexperienced lawyer.
Recently, I had the ghastly pleasure of revisiting that experience. I knew I was in for it when the young lawyer tak- ing the deposition asked this question: "And once again I ask you, and please keep ni mind that you are still under oath, are you absolutely certain that that is the correct spelling of your sur- name?"
And me without my copy of War and Peace. Normally, I wouldn't have been there at all.
Normally, I would have handed this case over to my young partner, a bright and keen young woman still anxious to make the world safe for democracy. She would have done well with this case. I would have told her the future of the free world depended on it.
Though a bit inexperienced in the law, she is nonetheless experienced in other matters, as evidenced by her current pregnancy. And this was on account of the unexpected onset of labor at the end of her ninth month — well, I mean it was unexpected for me — that she and her husband, even as I sulked, were in the delivery room giving birth to their first child. At least I knew this would not happen again. After she announced her pregnancy, I had insisted we renegotiate the terms of her employment, and she is now contractually limit- ed to the production of just this one offspring.
At the start of the third hour of the deposition, opposing counsel began eliciting from my client the lurid details of every single job he had held since 1947. Oh, I tried to pay attention, I really did, but sometime around 1951 my attention span simply went off in a huff.
It wandered around the room for a while before settling upon an old geological map hung on one wall. "Well," I mused to myself, I" had no idea that the city sat smack dab upon seven veins of coal.”
Apparently, I was musing aloud, for opposing counsel asked me fi I was interposing an objection.
"Yeah, maybe," I replied. "What did you ask?"
"Do you want the reporter to read back the last question?"
"Sure," I replied.
"Will you please read back the last question?"
The reporter scrolled back through the tape, found the spot and read, "Do you want the reporter to read back the last question?"
“I have no objection to that question," I said.
Besides, I knew it was virtually useless to object. Every time I raised the issue of relevance, he offered the same explanation.
"It's on my list," he would proffer, waving around his yellow pad. Sure enough, ti would be there all right. How could I object? I mean, there it was, on his yellow pad.
It wasn't clear to me fi his errant questioning was com ing from inexperience or stupidity, but he was nonetheless a colleague, and I owed him the full measure of professional courtesy, at least until I knew for sure.
Oh, I know, many of you wouldn't have put up with it, and in my younger days, I probably wouldn't have either. But it's at times like this that I so fondly recall one of my first depositions. Opposing counsel was an experienced litigator, and he objected the first time I tried to qualify the hospital records as evidence.
"You haven't laid the proper foundation," he said.
He objected the second, third and fourth time I tried as well. Finally he said, "I will have to continue to object unless and until you have the doctor testify that these records were prepared under his supervision and control, that they were prepared contemporaneously with the events they record and that they were prepared in the normal course of business." I got it right the fifth time.
The only thing truly harder than being a lawyer is being a young lawyer. Believe me, I know. So, ever mindful of the kindness shown to me in my formative years, I took me to the nearest bookstore during the lunch recess and bought a book I had wanted to read. It was a paperback, just the right size to hide beneath my yellow pad. I have no idea how the remainder of the deposition went, but the book was really good.
At the conclusion of the deposition, the reporter asked me if I was in a hurry to read the transcript.
"Take your time," I said. After all, my partner wouldn't be back to work for several weeks.
2009, S. Sponte, Esq.