What NOT to do when you are getting deposed

Delaware Supreme CourtRecently the Supreme Court of Delaware issued an opinion in a consolidated appeal of two separate actions, both of which arise from a dispute involving a theater partnership. The actual basis of appeal is likely pretty boring and not worth reading for most. However, at the end of said opinion, the Court discussed behavior at a deposition by one of the witnesses, Carole Hays.

It starts on about page 51. Her deposition was not at issue on the appeal. Nevertheless, the Court decided to include it in their opinion and devoted about 20 pages to it. A non-issue on the appeal. Typically courts are hesitant, at best, to address anything not in the appellate briefs. If an argument isn’t made by a party, it effectively doesn’t exist. It is sad when you read an order from an appellate level court that says something to the effect of, “Plaintiff is likely correct because of X, but since they argued it was because of Y, we won’t address that and rule in favor of Defendant.” In any case, the Supreme Court was so upset about Mrs. Hays’ behavior they saw in the record, they devoted 20 pages to it in their order. (I picture several highly educated Justices at the Delaware Supreme Court collectively saying “WTF” or whatever really smart people say when they read this kind of thing. (For the record, I went with WTF). If you haven’t looked at it a little, now is a good time. Just skip to about page 51.

Q. Have you ever been deposed before?

A. Yes.

Q. How many times?

A. Once.

Q. When?

A. I believe it was a while ago.

Q. What was the matter about?

A. It was a difference of opinions.

Q. I’m sorry, go ahead. Were you done with your answer?

A. Yes.

Q. A difference of opinion about what?

A. How best to proceed in one’s lives.

Q. Was it involving a lawsuit?

A. Oh, definitely.

This apparently goes on for the better part of the day. The lawyer does nothing to stop or correct this behavior from what I can read. Though, I admit I did get a chuckle from reading her responses, part of that was because I knew there was likely a reckoning when the trial court got involved. Still, it is sad that the deponent and her attorney wasted so much time behaving this way. The point of a deposition is to avoid the unnecessary costs and delay of wasted trial time. Between attorneys fees and the cost of a court reporter, a deposition can easily cost over $10,000 per day. That doesn’t account for preparation or reviewing the transcript, etc. Just that one day.

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