ExposureBlog

Suppose you’re a plaintiff lawyer with an injured client.  You suspect the defendant, a large construction company, has some very bad work practices that put employees of subcontractors at risk.  You only have so much time and funds available.  After the eyewitnesses—and of course, the safety guy—who should you depose? 

Some of of my clients on the Plaintiff’s side like to go top down–deposing the CEO or the President of the company first, then work their way down to the managers.  Others prefer to work their way up–foreman to supervisory personnel.

At some point–usually with the mid-level managers they will encounter something like dense fog obscuring all further discovery: the malady known as CCA: Command Chain Amnesia.

While you or I might remember inconsequential meetings with people that took place years ago—and may even remember what was said, there are highly-paid people working as managers who won’t remember talking with anyone.  They will be unable to recall meetings, conferences and even what they took in college.  One president for a VERY large Texas construction company claimed on the record that he didn’t really know anything about electricity (the case involved an electrocution.)  When it was pointed out that he also had an engineering degree, he said he couldn’t recall taking any courses that had to do with “electricity.” 

Amnesia isn’t limited to the corporate world.  A CIA analyst by the name of Tyler Drumheller is writing a book that will no doubt shine a bright light on command chain amnesia in the run-up to the Iraq conflict.  It seems he told both his boss, a man named John E. McLaughlin as well as the Director of the CIA himself that the intelligence regarding weapons of mass destruction was seriously flawed–well before the information was used in speeches by both the President and by the Secretary of State.  When asked to comment, neither McLaughlin nor Tenet could remember ever talking with Drumheller. 

So, I suppose it’s a waste of time to be angry with the mid-level managers when they fail to remember important details.  It seems to affect the big guys as well.  There are, of course, few things that can be done to make someone remember something, especially when doing so makes them look foolish. For the person asking the questions, this can pose a real problem.

I did hear once about a case in which a feisty trial lawyer (is there any other kind?)–after hearing a deponent repeat “I don’t remember” for about four hours—finally demanded to see the man’s medical and personnel records.  Seems he wanted to find out if they guy was taking drugs that would cause amnesia—or in the alternative, why a company would even hire someone who couldn’t remember anything. 

Thankfully, command chain amnesia doesn’t usually cause problems for the those who have it.  Some, like George Tenet,  go on to win the Presidential Medal of Freedom.

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.

To someone not used to this sort of thing, depositions are not easy to read.  The question-and-answer format is similar to a script. But after awhile the words take on the character of a true discussion between two people–the lawyer and the person being deposed.  The trick is to figure out how to make sense of it.

I follow the advice of the first history professor I ever had—a guy named Walter H. Ryle IV.  He was a young guy back then, and the son of the college president, Walter Ryle III.  Unfortunately the only thing I took from his class was his comment that “a book that hasn’t been marked up, dog-eared, pages underlined and high-lighted—is a book that hasn’t been read.”

So, before I read a deposition I round up a new pack of highlighters, Post-It notes and a couple of red pens.  Then, I mark up everything.  Literally.  The deposition can probably gain several ounces during my perusal of it. And when I’m finished, it looks like a book with yellow feathers.  Or something. 

This is annoying to the opposing counsel.  To him or her, it’s obvious that each of the hundreds of notes (also called FLYTs—funny little yellow things) might involve information important to my conclusions.  Or not.  Regardless, there’s never time to read them all (and who would want to?).  So, the poor opposing counsel usually asks the court reporter to copy the depos *in color* and at a size that will include the Post It notes. 

In reading depositions, I’ve discovered it takes me about 2-1/2 hours per hundred pages.  That’s an average that hasn’t changed over ten years.  When a client asks me for a guestimate of the time involved, I usually respond by asking them how much paper they intend to send me. 

I’ve seen experts bring in depos they have claimed to have read—but there’s no notes attached. No marks of any kind. Pristine.  I don’t know how they do it.  But if were an attorney (and I’m not), I’d probably ask them, “is *this* document the one you read in preparation for this deposition?”

More on depositions in a later post.