Chapter 116: Deposition and Date

Saturday, April 30, 1983

We slept until eight-thirty, which was actually cutting things a little close for me. I got through the bathroom quickly, munched some breakfast, got dressed in something nice (but not too nice), and was ready to go by nine-twenty.

This time Dad was driving. We picked up Jasmine, then the three of us headed to Mr. Lancaster’s firm’s offices, which were located in an office building fairly near the Galleria. Not too upscale, but upscale enough to count. The truly high-dollar law firms had fancy offices downtown, but this wasn’t a case for anyone like that.

Mr. Lancaster met us in the lobby and took us to a conference room where two others, presumably lawyers, were waiting. One was a woman wearing a nice, if very businesslike, skirt-suit, and the other was a slightly graying man of perhaps fifty, also in a suit.

“This is Bryant Keller,” he said, nodding to the man, “and Amy Jennings. Bryant is an ace at negotiating settlements. He’s here today just to meet you. Amy is an expert at reading people and figuring out what they know and don’t know. She’ll be more involved with jury selection if we get that far, but she might be able to pick up on what they think they know during your actual deposition. A lot of cards will get put on the table then, and even more when we depose the other driver. In any case, we wanted them here because they’ll be here that day, and Amy will be in the room. The more we can make the experience the same, the better we do.”

I nodded. “All of that makes sense to me,” I said, shaking hands with both of them. Mr. Keller seemed surprised that I’d simply offer a handshake, while Ms. Jennings seemed to expect it. Expert on reading people, indeed! All to the good that none of this touched on my being ... unusual. Well, except for maturity and calmness under pressure, but I had ample excuse for that.

Jasmine nodded. “Makes sense to me, too. Steve’s calmer about this than I am, since he gets cross-examined regularly, but I’m feeling good about it.”

She shook hands with everyone, and then Dad did, too.

I hesitated, then said, “Is this moving at the usual pace? My impression was that the courts were generally backed up and nothing happened quickly.”

“That’s not always true,” Mr. Keller said. “Or, it is, but ... the thing is, the courts are quick enough at starting cases. It’s finishing them where things get bogged down, if things actually go to trial. We’re certainly hoping they don’t. Right now we’re in what’s called ‘discovery.’ I’m assuming Mr. Lancaster explained that?”

We all nodded. “He did,” Dad said.

“We filed right away, and the other counsel has been agreeable, so far,” Ms. Jennings said. “I suspect they believe their case is stronger than we believe it is. For instance, if they think they can prove contributory negligence on Steve’s part, that would force a lower settlement.”

“Of course, delays may still happen,” Mr. Lancaster said. “But, for now, we’ll assume they want to move right along.”

“If they decide their case is weak, they’ll want to settle,” Mr. Keller said. “The longer it drags out, the higher the legal costs. The defendant doesn’t directly control that — if the insurance company wants to settle, that’s it, though the punitive damages might or might not affect that. In any case, once they make the decision that they’ll most likely lose at trial, things could move very quickly.”

“So, what happens today?” Dad said.

“We’ll move to a conference room,” Mr. Lancaster said. “I’ll be there, as will Amy. Bryant will be out here, billing some other client...”

That drew a laugh.

“Once they decide to settle, he’ll be on call to help negotiate it. It’s unlikely that they do anything on the same day, but ... you never know. They might, depending on how discovery goes. The entire point of discovery is to encourage settlements and cut down on time spent in court.”

“That makes sense,” I said.

Mr. Lancaster continued, saying “There will also be a court reporter taking all of the testimony. You can generally ignore them. That’s what they prefer, in almost all cases.”

I nodded.

Jasmine smiled and said, “I’ll try to ignore them. It plays against my instincts, though.”

“Drama, right?” Ms. Keller said.

“Right.”

“Just pretend they’re not there,” she said, “except if there’s a break or something. Smiles won’t hurt, it’s just ... you’re not talking to them. Their involvement with the proceedings is as the equivalent of a tape recorder.”

“Got it,” Jas said.

“Now ... what I’d like you both to do is give me at least a quick look on every question. Hesitate a second and see if I shake my head even a little. If I do, hesitate longer and let me step in or clear things,” Mr. Lancaster continued.

I chuckled. “I should be able to do that. That one will go against my instincts, though. I’m used to answering questions as quickly as possible.”

“Where it’ll be easy for me,” Jas said. “No one asks us anything!”

“It’s not like Debate!” he said, chuckling, too. “I know how that works! This is slow and deliberate. They’ll expect you to start off that way and then lose focus. The more you keep focus, the better. They will likely ask at least a few questions designed to throw you off. Questions that amount to accusations, or questions of the ‘Have you stopped beating your wife yet?’ variety.”

“Like ‘Did you have any drinks at Bangkok Thai, or was that later while in your car?’” I said.

“Good one!” he said. “Yes, exactly that. You can answer ‘No to both,’ of course, but they’re hoping for a bad answer. Anything you say can be quoted at trial and used to create doubt in a juror’s mind. Changing your story would be bad.”

I nodded. “That makes sense.”

Ms. Jennings added, “That’s a great example question. It shows why we want you to answer slowly. That question has several problems. For one thing, it’s argumentative. I’m sure you get questions like that in Debate — basically, statements posing as questions.”

“Of course,” I said.

She smiled. “It assumes a fact not in evidence — that you had a drink. That’s a big no-no, and we would object to that. Finally, it’s a two-part question, and we’ll always want those broken out into two separate questions. If you’re always answering slowly, most lawyers wouldn’t even try that. On the other hand, if you’re answering right away, that would be the place to sneak in a question like that.”

I nodded again. That all made sense. Most of it I knew, but not all of it was things I probably should know.

Jas looked a little nervous. Ms. Jennings turned a little to her and said, “Another reason we want you to slow down and look at us every time is that it’ll help keep you from feeling nervous. If you have any doubts about the answer, stop and check. At trial, they could say, ‘She said X, then changed it to Y.’ They can’t say, ‘She said Y, but only after checking with her lawyer.’ If you said Y, you said Y. Think of it as a test, or a pop quiz, where the teacher is trying to trip you up and make you pay attention to the question.”

“That’s good!” Jas said, smiling. “Some of them do that.”

“Stick to yes or no answers whenever possible. Be careful, though! This is another reason I want you to take your time. Sometimes a lawyer will set you up with a string of ‘yes’ questions and then toss one in that needs to be a ‘no.’ It’s easy to get into a rhythm. Even if you immediately correct it, there can be at least some damage done.”

I nodded again.

Mr. Lancaster said, “Don’t give an opinion unless they state that it’s an opinion question. Don’t try to give speeds and distances unless they’re clear that it’s an estimate, and be careful even there. We have all of that information, but we don’t want you to know it for this. It sounds over-rehearsed.”

“Mostly because it is over-rehearsed,” Ms. Jennings said. “We’re going to have to be careful of that with you, I think. You’re both much smarter than the average bear. That’s a good thing, but it means you’ll seem more rehearsed than you are.”

“Thanks, I think,” I said, smiling. “I think I have to be myself, though.”

Jas nodded. “Me, too. I mean, obviously I can act, but I can’t act here.”

“Oh, definitely!” she said, looking amused. “They’ll demolish you if you try to be someone else. They’ll have access to your grades and competition record and all of that. Try and play a yokel and they’ll prove you’re not.”

I nodded.

“Continuing on that point,” Ms. Jennings said, “Just answer the question. Don’t elaborate, don’t add opinions, nothing like that. You’re not there to argue. It’s about the facts, and only the facts. The fewer words you can use to present the facts, the better.”

Mr. Lancaster nodded, then said, “There might be some oddball questions for which the answer isn’t obvious. Even if I’m waving you off, decide what you think is the correct answer and we’ll discuss it. We’re allowed to confer off the record, either by whispering or leaving the room.”

“Makes sense,” I said.

“If you don’t know, the right answer is ‘I don’t know,’ or ‘I can’t recall,’ or anything of the sort. Do not guess. Even if you’re ninety-nine percent sure, if you don’t know the answer, don’t make it specific. I’ve seen a plaintiff lose a case because she said the defendant’s shirt was black in the deposition when it turned out to be a dark blue. I’m sure it looked black at night, but the defense twisted into her having poor recall and a shifting story and bad eyesight. Juries are unpredictable.”

We both nodded at that.

Mr. Lancaster said, “All this time we’ve just talked about answering. The next point is how to answer. You want to say what you mean to say, concisely, with as few um’s and er’s and other filler sounds as possible. Don’t nod or shake your head or point. If you find yourself doing that, make sure you’re also saying a clear ‘yes’ or ‘no.’”

Ms. Keller added, “Please don’t say ‘uh huh’ or ‘uh uh’ or ‘mm hm.’ The court reporter needs an answer made up of words, not sounds. Partly that’s simply because it’s confusing. Was it really ‘uh huh’, or was it ‘uh uh?’ The two can sound similar. ‘Yes’ and ‘no’ remove all the confusion.”

“Yes, I’ve got it,” I said.

“Yes, I’ve got it, too,” Jasmine said.

They both chuckled.

We went on a bit longer with explanations, then broke for lunch. They’d had sandwiches catered in. I’d have been fine, but I think Jasmine needed the break. She certainly seemed perkier after it.

Once we’d had lunch, we moved to a mock deposition. They brought in another lawyer, Larry Baker, who was pretending to be the defendant’s counsel. He lobbed questions at me for a couple of hours. Jasmine was allowed to be in the room for the first ten or fifteen minutes, I’m sure to make her comfortable with the process, but they asked her to step out for most of it. We’d only covered a bit of the dinner and our shopping at the point she left, and (aside from the question of alcohol, which seemed fully covered by the toxicology report) I couldn’t imagine much controversy there.

For me, more of my comfort level was my Debate experience than my long life. I’d almost never been in court during my first go-round. This would be my first deposition. But I’d spent the last couple of years thinking through and answering complex questions under pressure. Even if the format was very different, some of the skills transferred pretty well.