ExposureBlog

I was cleaning out the office last week and came upon some binders from a case I had worked on in the late 1990s. They were depositions taken of a expert witness involving a simple slip-and-fall case. And no, I wasn’t that expert. I noticed one binder in particular—attached to each page was a yellow post-it note and on most of the notes were drawn stars or the word “yikes”. Stuff like that. I nodded to myself: this was one of the good ones.

Most people have never heard of the word “deposition,” and those that have equate it with something being deposited—like nuclear fallout or bird droppings. Stuff that is toxic in some vague ill-defined and barely-understood way. Depositions in the legal world refers to experts with (1) experience and (2) opinions. . . answering questions posed by attorneys skilled at (1) logic and (2) rhetoric.

Unlike most of the so-called “reality shows”, depositions are always fun to watch–and read. On one side, you have the scientific expert. Occasionally this person is an academic type who is accustomed to deference from students and non-Phds and one who thinks “robust discussion” means a brief skirmish before a consensus is reached–a concensus that precisely matches the expert’s original opinion.

On the other side you’ll find the lawyer—a guy who has seen it all (at least twice), likes his steak well-done, knows what he knows. . .and has a crisp ability to use logic, rhetoric and countless other reasoned arguments to point out the flaws in the expert’s opinion. Not just flaws, but *fatal* flaws–flaws that make the expert’s opinion not only *worthless* but *less* than worthless. Dangerous, maybe.

This combination, of course, includes all the makings for great theater. Two talented people argueing over what happened and most importantly, *why* it happened. If the expert wins, then the opposing counselis assumed (for the moment) to be riding a bad case down an arc that will end—well, badly. If the lawyer wins, the expert comes across as a fool, which, of course, is not a good thing for street cred, academ cred or, in fact, any cred whatsoever.
Throw in a couple of hundred thousand (okay, maybe—like in a recent case–4.4 million—which my client won) and the stakes are high indeed.

Even when immersed in these interminable struggles (a depo is often six hours long), I always gauge my answers by how they may be perceived by an audience–the jury. And of course, my tormentor—the opposing counsel–has exactly the same thing in mind. More specifically, opposing counsel wants to reveal to the jury how this expert isn’t really an expert, but a hired gun, a fool and a charlatain, the theories he expounds are half-baked at best, totally bogus at worse, and overall, simply should be dismissed as a mix of claptrap, noise and static.

The expert wants the audience to believe that his opinions are expressions of pure reason, and that his analysis of events more or less mirrors reality.
The stakes are high. The expert believes in his model (it’s usually called a “model”) and the lawyer often believes the expert is a hack that happens to be totally wrong in his/her conclusions. Or, the lawyer believes the expert is on to something—which raises the stakes even higher.
Reading a deposition where the expert had welded his reputation to his opinion (most of us, do) and where his interrogator was intimately familiar with the arcane rules of logic (most good lawyers are) is great fun. Sometimes the lawyer scores huge serious points, such as through the use of hypotheticals. Sometimes the expert, under withering fire, advances a salient into the opposing argument in such a way that the only sensible response is to change the subject or suggest everyone break for lunch.
On the surface, it’s two people argueing with each other. But in the greater sense, it’s far more—it’s a microcosm of how we understand and interpret the events of our world. Each event we witness is associated wth an internal (sometimes flawed) expert who is tasked with the responsibility of explaining the world to us in terms we can understand. However, we also have an arbiter, a verifier, *our own internal lawyer*, if you will, whose job it is—is to reduce the event into terms we can understand. Real World Sensible.

Thus, we evaluate our own experiences—then decide what they mean in the overall scheme of things.

Getting back to the old deposition from the 1990’s, I’m looking forward to reading it again. Given all the yellow post-it notes, I’m sure I’ll find confict, mixups, and who-knows-what in those pages.  You read enough of these things, like I have, and the voices become real–Question vs Answer.
A good deposition can frame the conflict in a very precise way, getting right down to the essence of things.  Which is why I believe somewhere, some television producer is planning his perfect reality television show: Deposition: The Ultimate Reality Show.

I know I’d watch it.