Sidebar. Lessons from Deposition War Stories

• Author: Douglas Connah
• Pages: 61-63

Sidebar

Published in Litigation, Volume 46, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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DOUGLAS CONNAH

The author is a founder of Litigation, and was editor in chief from 1976–78.

I once was one of a half dozen or so out-

of-town lawyers attending a deposition

in Miami at which, after eliciting the wit-

ness’s name, a local criminal lawyer, coun-

sel for a co-defendant, opened with the

following question and received the fol-

lowing answer:

“Mr. Martinez, as we sit here today, are

you armed?”

“Yes, I am,” the witness said.

Thereupon the deposition was sus-

pended, and we cooled our heels for a

half hour or so while the interrogator

telephoned the judge’s chambers. Mr.

Martinez was then admonished to check

his weapon at the door, and the question-

ing continued without incident.

This was the second time in 30 years

of practice that I had encountered a lethal

weapon during a deposition. In the first, a

libel case, I represented a Baltimore Sun

reporter, and his questioning took place in

the plaintiff’s lawyer’s office. At one point,

the lawyer suddenly reached into his desk

drawer and out came a .45-caliber auto-

matic, which he waved maniacally back

and forth. After a tense moment during

which I resisted the temptation to hit the

floor, he laughed and put the pistol away

and asked my client his next question.

As mundane as depositions can be, they

often have their surprise moments, inci-

dents that you cannot have prepared for or

predicted. For these, you must be nimble

enough to react instantly, without losing

your cool and without allowing aggres-

sive, often obnoxious adversary counsel

to knock you off your stride.

Here are some examples from my three

decades of practice. They’ve been edit-

ed and condensed for clarity, and some

names have been changed to protect the

innocent and disguise the guilty.

My fellow Baltimorean, Representative

Elijah Cummings, the late chair of the

House Committee on Oversight and

Reform, practiced law for 19 years before

his election in 1996. Our paths crossed in

cases and at other events, and occasionally

we represented adversaries. Cummings

represented the plaintiff in a libel action

against my client, WJZ-TV, a local ABC

affiliate, based on its report about the

hunt for a kidnapper who had abducted

a woman and stashed her in a downtown

Baltimore no-tell motel.

Cummings’s client became a suspect

after he left a hardware store near a

staked-out phone booth identified as the

one the kidnapper used to make his ran-

som demand. Carrying a bag of coins, the

plaintiff was grabbed by the cops when

he entered the phone booth. Later, he was

freed without charge. But my client’s vid-

eo footage identified him as the suspect of

the moment.

Turns out he wasn’t the perp. I forget

what the coins were for, but they weren’t for

making ransom. The most memorable part

of the case was the plaintiff’s deposition,

where I asked a question I routinely asked:

Q: Please forgive this question, but I

have to ask it. Have you ever been con-

victed of a criminal offense?

A: Yes, I have.

Q: Please tell us what offense or offens-

es you’ve been convicted of?

A: Murder in the first degree.

[Long, silent pause.]

Q: Uh, uh, can you tell us, er, to what,

um, prison term, if any, you were

sentenced?

A: Yes, I was sentenced to life

imprisonment.

[Cummings is sitting back in his chair,

his arms folded across his chest.]

Q: Well, er, uh, can you please tell us how

you happen to be sitting here today?

His crime was committed when he was

a teen, and, after serving 14 years, he was

paroled and he was now a model citizen

working for a construction company. After

I was able to get past my astonishment

that a convicted murderer was sitting

LESSONS FROM

DEPOSITION WA R

STORIES