Transcript

Objection! · Coopers' Code

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Audi and welcome to the show. Cooper's code examines a legal
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issue and hits the highlights so we can all achieve the best
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result for our clients. I'm Miles Cooper, and with
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today's guest, Carol Okollowas. We will be discussing the
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strategy, art and irritation inherent to deposition
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objections. Before we get into today's
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topic, a few words about Cooper's LP.
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Law. Carol, welcome to the show.
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So today we're talking about deposition objections.
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I presume you've been to more than a handful of depositions
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where what's going on with the opposing counsel may be less
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than enjoyable. Yeah.
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Most people outside of those who are doing this kind of work on a
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daytoday basis might see objections as binary.
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Either object or don't object. What kind of challenges do you
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face internally? When evaluating whether you
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should or shouldn't object in the moment in a deposition.
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When I'm making this decision whether or not to object,
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there's a lot that's going through my head in that moment.
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You know, can I? Is the first one should I is the
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next one in that it goes back around to can I?
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I mean, I'm five years in as a lawyer, so I'm still kind of
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like, can I make an objection? Is that a valid objection I've
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definitely made. More than a few objections that
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were not valid that I made, I guess partially to interrupt the
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flow of the questioning. I didn't like what was going on.
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It was my client was being deposed.
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So can I was a no, but I went ahead and did it anyway.
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But I've definitely gotten hung up on the can I question.
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Where I'm searching through my internal files of depo
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objections and then I've missed my chance because my client
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jumped in and answered anyway. Should I is partly do I want to
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highlight this issue? Is it better to just let it go
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and not show that I'm concerned about it at all?
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I had a case where a client hired somebody who is
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undocumented. To care for them after an
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accident and there was a question at my clients
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deposition about something related to that and I thought
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what do I do? Like can I object?
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Do I even want to bring an attention or focus to this Maybe
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it won't even come out And and all of that it like we say is in
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a split second you have to make that decision so.
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So I guess that's what's going through my mind in a deposition.
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You say you're five years out. I'm, I think 23 years out.
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At this point. I still have the same problem
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that can I? Should I?
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And the strategy behind whether you object ties you up almost
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more than the objection itself. Right, Yeah.
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And one of the things I feel that I've learned from watching
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other lawyers, working with really good at other lawyers is.
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If your gut is telling you that you should object, object, yeah.
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Even if you're not even sure what the objection is or whether
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you you should, there's nothing wrong with going ahead and
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putting it out there. Because if you don't, you have
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the opposite problem, which is thinking about whether I should
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object that the information comes out and it's like, Oh
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yeah, I shoulda. Yeah, right, right.
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At least you got it out there. Yeah.
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The other piece and I kind of started off on the objection
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piece. In our role, most of the time
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our objections are going to be related to our clients and
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perhaps treating doctors and experts.
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But generally they're people who we can have an opportunity to
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work with before we get to deposition.
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And one of my feelings on objections is the best way to be
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created objections is to have the right client or witness
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session before. The deposition to make sure that
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you know what information is going to come out.
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And I'll share. I will tell my clients,
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typically, I don't object much and the reason I don't object
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much is because we've gone over what we're going to go over.
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If they're completely out of line, I am going to object and
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I'm going to instruct you not to answer.
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If you're getting an objection and it's not an instruction, not
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to answer. If I'm telling you vague and
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ambiguous or some other thing, you're still going to answer
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that question. But it's a Telegraph to you
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that, hey, look, I don't understand that question.
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You might need to think about it.
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Yeah, sometimes I think that can help a client in deposition
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you're not leading, you're not telling the client want to say,
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but a client can get nervous sometimes and you can sense that
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and let's say a question is vague, but you know otherwise
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you would think somebody could probably answer that if you got
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a particular client who you're sensing is just nervous about
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the whole process and scared and.
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I'll object and say it's vague and then like I would with any
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client, you know, go ahead and answer if you can.
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And sometimes the client is looking for support and so maybe
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they'll see that and go OK. I don't just have to scramble
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and try to figure out an answer like we talked about in depo
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prep. You know, I'll ask the person
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questioning me to ask it a different way or something.
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As we talk about this. I always worry about the vague
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objection. In one sense, I like it to help,
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you know, Telegraph to a client, hey, you know, this question's a
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little off. At the same time, if the
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question is truly vague, it's the defense lawyer's job to get
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a good record, not our job to fix their questions.
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And so on. A vague question if they've left
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it. Vague.
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Unclear. They're not going to be able to
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box our client in at trial. Do you always want to highlight
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the vague question? It depends.
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A vague question could mean that my client is answering that that
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she had the same injury before the accident as she has after,
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and a vague objection might be. I don't understand what you're
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asking. Can you frame it?
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You know, whatever. I'm not going to say a vague as
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the time frame. No, that's not true.
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I have definitely. Can you clarify what time frame
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you're asking about? And sometimes the defense
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counsel will chop it up. OK.
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Did you have this injury or whatever before the accident?
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Did you have the injury after the accident?
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It's not so much that I want to help the defense attorney.
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But I want to make sure my clients not testifying to
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something that then the defense attorney can use later on.
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That makes a lot of sense. The other area where I probably
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find more frustration is when I'm dealing with opposing
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counsel who is objection heavy. Have you had that experience?
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Not that much, but yeah, I definitely have.
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When I say objection heavy, I mean either there.
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Objecting with speaking objections, which is in essence
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telling their client what to say.
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Objection. You've already testified that
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you did, thought dot dot dot. Right, right, right, right.
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Have you had the speaking objection problem?
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A little bit. Not much.
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I've had the over objecting problem more with not defense
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counsel, but I don't know why. But it happens in cases where
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I'm deposing a doctor and for some reason it's always at
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Stanford Dr. There's a reason for this.
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I know, I'm sure there is. I'm sure there is.
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Why I have to go through their counsel to even talk to one of
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their doctors. They're very protective of their
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doctors. Well, this is a tangent.
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I think it's an important tangent to cover.
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And it's Stanford, UCSF, sometimes Kaiser, sometimes some
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of the other Palo Alto Medical Foundation, the Eno carriers for
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those doctors. Give them a free lawyer for
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deposition. And not only do they give them a
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free lawyer, they say you cannot talk to the plaintiff's lawyer
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or the defense lawyer in advance.
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You can't have a prep session with the treating doctor, which
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is why you have this usually junior lawyer, not great, who
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feels it is their job to do textbook objecting throughout
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the deposition. OK, that comports with my
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experience. This doctor is not.
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On trial. We're not suing this doctor.
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I just want to know. My understanding of the reason
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behind this is it's from the risk assessment, the risk
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management department. It's worth it to pay all of this
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to make sure that there's not some inadvertent oops, Doctor
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testified to something where now they've been brought in as a
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malpractice defendant peripheral to an injury case.
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As I get heated on this, the issue I find in this is.
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A lot of doctors don't review their file beforehand.
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And the prep session with the doctor is not to tell the doctor
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what to say. It's So you're reminding the
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doctor. Ah, yes.
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My client was Tom Jones. This is his file.
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These are the things you did to him.
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Do you remember this piece? Oh, yes, now I do.
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We're going to have some questions about this particular
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component of it. Are you all booted up on that?
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And the number of dead end depositions I have because of
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this, in addition to the objecting.
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But yeah, there you go. Yeah.
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And this diatribe. Right, OK.
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Going back to the objections, so you've run into some of these
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speaking objections with these junior lawyers who are there to
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try and fence off the doctor. Right, Yeah.
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How do you address them? I just call it out and put on
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the record that it's a speaking objection and then I tell the
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deponent you can answer the question and then try to ask
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questions around it to try to deal with it.
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When you're in that setting, have you ever adjourned the
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deposition to take the lawyer out and say, hey, you know, I
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don't want to embarrass you, but what you're doing is completely
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improper in terms of the speaking objections.
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And I'm taking out of the room so that we're not getting into
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the ego fight about it. But if it persists, I'll be
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forced to have to do something like a motion to compel or a
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motion for a protective order, none of which you want to do for
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a billing perspective. But I'm doing this outside the
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president's because I I don't want to embarrass you in front
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of other folks. Can we tone it down?
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It's so funny cuz two things came up for me when you told
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that. One, no, that's never happened
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with me, It's never been that bad.
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And two, I've taken now or not taken.
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Actually both times defended 2 in person depots in my whole
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legal career. Everything else has been on Zoom
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because sandwiched in between everything was the pandemic.
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So I don't even know how I would.
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I guess I'd just pause it and call the guy.
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Yeah, it's interesting. Yeah.
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It's a different dynamic when you're physically there in
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person. A couple days ago I did an in
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person deposition and it was my first before the pandemic and it
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was like, oh, somebody handing somebody a physical, you know,
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photograph for an exhibit. It just was very foreign.
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At the risk of tangenting their pros and cons on that zoom depo
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process, the fact that you can get through a lot more work
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without spending all that time in transit is nice at the same
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time. The ability to have that
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personal connection and try and realign something without
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embarrassing them is much harder.
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Sure, yeah. Going back to the attorney who
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objects a lot, are there ways that you are able to either wall
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off that lawyer or do things to make sure that you are
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maintained in contact with the witness as opposed to getting
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sucked up into the fight with the lawyer?
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Yeah again, I'm newish at this and I just ignore it.
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I pretend like nothing ever happened and I just say you can
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answer and sometimes the diponent will take a cue and
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say, yeah, I really don't understand your question, you
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know, or whatever. Depends on the situation of
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course. But you know, well, I was just
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asking this and then I say the same thing again.
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Or I clarify, I'm trying to get the information, I'm not trying
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to fight with anyone. We talked a little bit about
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taking to somebody outside or talking about they need to bring
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a protective order in. The back and forth that goes on
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in a deposition room 1 doesn't have the benefit of having a
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judge right there. And from a plaintiff
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perspective, well, we will do what is necessary to prevail in
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a case. There is that inherent challenge
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in recessing to seek a protective order that that's a
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slowdown in the case and that is not a guaranteed outcome.
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What calculation do you do as you think about the difficult
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behavior of the defense counsel versus the risks, challenges,
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delays inherent to seeking a protective war?
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Well, of course it depends on the issue.
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How important is it in the case? If it's my client being deposed,
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I want my client to know that they're protected.
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So if what the defendant is doing is trying to.
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Do some kind of character assassination.
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That's not relevant. I think it's worth it to just
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end the depot if that's what's going on, because I want to make
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sure that they're not just playing games with my client.
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As you evaluate the risks, benefits of suspending A
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deposition when somebody is being challenging, do you
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consider some of the challenges that go along with stepping into
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lawn motion? Let me put some meat on those
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bones as far as the direction of the question.
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We know when a case is in federal, a federal judge is much
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more likely to sanction or smack people around.
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We know in the state court the lawn motion sometimes can be a
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month's delay to get into lawn motion and frequently it is a oh
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you kindergartners, you're both responsible for this.
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You go work it out. Sanctions rarely happen with
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that is kind of a backdrop on addressing the issue.
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How do you navigate that as you reach a point where you think
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about it may be time that I actually have to pull the
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trigger. And because I can't ask a
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simple, straightforward question without it being super long, do
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you sometimes consider taking your client out to explain OK,
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this is going on, it's not OK. Let me explain how the court
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system works in terms of lawn motion if we suspend right now.
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It's going to be a two-month delay and we'll be back here.
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Or we can get through it guys, a jerk, and we'll just kind of
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absorb it and move through it. It's not OK, but the delay is
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just not worth it. Again, everything depends on the
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situation. Is it important enough to delay
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the case for a month? You're opposing counsel's
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attitude in doing that, In whatever that person's doing is?
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I'm going to throw my body on the tracks.
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I don't care if I stop it, you know, because you know he's
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trying to push the case around or whatever.
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It may be worth it to push back just as hard if the delay harms
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your case and your client. I mean, you're proposing a real
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crappy situation here, and that is your opposing counsel is such
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a jerk, but you really can't fight what they're doing
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without. Negatively affecting your own
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case and your own client, it's a tough call.
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It's got to be pretty important if you know that's how it's been
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going in the lawn motion department.
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If you are pretty certain that it would be a month delay, then
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yeah, you just have to assess it on what you know.
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I find this topic interesting, and part of the reason I find it
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interesting is I do everything in my power to.
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I will describe it as collaborate with the other side.
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And by collaborate I mean. To my job to get them the stuff
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so they understand the risk, so they can get the money right at
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the same time it will. In that vein, moving to compel,
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doing all the lawn motion fights tend to not advance the ball
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from my perspective with exceptions.
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And those exceptions are sometimes you have somebody who
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is so used to throwing their weight around and so obvious in
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the way that they do it that they need to be checked.
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And once you check them the trajectory of the case changes.
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But until you check them it will just keep going.
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Yeah, I don't know if the courts have changed in this respect
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over time. I know that there is a lot of
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talk about civility. I know during the Trump
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presidency there was a lot of talk about civility because
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there just was a lot of incivility in public office and
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people with positions of importance in our civil society
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were acting. Uncivil.
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And there was talk within the legal profession about, well, at
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least we can stand up and be stand up folks and get along and
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get things done and still do our job, still advocate.
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And I don't know if that translated into the courts
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taking civility a little bit more seriously.
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Again, in any given situation you want to assess like you
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know, if I put this in front of the judge, is the judge going to
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roll. Their eyes is this important
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enough? But I've seen ethics cases where
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the court did take civility serious and took the time and
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and reprimanded counsel. So I don't know.
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It's just a decision making process.
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For some reason you make me think of the rock, paper,
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scissors order, which is floating around out there, where
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the arguments were so intense in the case that they couldn't
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agree on where the deposition was going to take place.
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And the judge ordered them to go out and play rock, paper,
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scissors on the front stairs of the courthouse.
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Nice. There are particular concerns
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when a deposition is being videotaped as it relates to
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objections. And by that I mean making sure
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that the objection is not getting in the way of the
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answer. And while a court reporter can
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take down only one person at a time, they usually are able to
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parse it when it's on the transcript.
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But when it's on the video and the attorney is talking over at
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the same time that the answer occurs, how do you address that
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when you're trying to keep your record clear?
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Reask the question. So if the objection if there's a
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lot of overlap, just say the same thing over again, maybe
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slower, so that everybody knows what you're doing so you've got
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a clean record. That I've heard that from other
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lawyers that a council. This is being videotaped.
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We're videotaping it because we intend to play it to the jury.
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And I accept your objection. I would say a standing objection
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on that for this next section. And I'm going to repeat my
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question and when the lawyer does it again because there are
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lawyers who will say, yeah, I understand all that, but I'm
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still going to get your way. The 4th time you repeat the
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exact same question is about the time that they stopped doing it.
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But it is a real challenge and. I think that if you put on your
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movie director lens to recognize that the jury needs to see it,
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not because the objections are supposed to be edited out
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typically for trial. And so if you put your movie
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director lens on to see how this is going to come across and then
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make sure that you go back and reask the question, I think
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that's important. Yeah, probably the best way to
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get a clear record for trial. With all of it being covered,
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Carol, thank you for being on the show.
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Thank you for inviting me. And thank you for listening
20:26
today. Please e-mail us at Podcast at
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20:31
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To all of you doing justice out there, Happy hunting.