Deposition Weirdness

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Category: Civil Procedure, Legal Practice, Legal Profession, Public
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Photocopiers

If you haven’t yet watched this reenactment of a deposition segment about the meaning of the word “photocopier” on the New York Times website, you should.  The New York Times summarizes the lawsuit in which the deposition was taken as follows:

In 2010, the Cuyahoga County Recorder’s Office in Ohio changed their policy about copying records. Digital files would no longer be available, and the public would have to make hard copies of documents for $2 per page.  This would prove to be prohibitively expensive for Data Trace Information Services and Property Insight, companies that collect hundreds of pages of this public information each week.  They sued the Recorder’s Office for access to digital versions of the documents on a CD.  In the middle of the case, a lawyer representing them questioned the IT administrator of the Recorder’s Office, which led to a 10-page argument over the semantics of photocopiers.

The deposition segment starts with a question about whether the Recorder’s Office used “photocopying machines – any photocopying machine?”  The deponent attempts to turn the table: “When you say photocopying machine, what do you mean?”  The ensuing dialogue would not be out of place in an absurdist play.

Although the reenactment is (presumably) faithful to the deposition transcript, the actors clearly take liberties with the delivery and demeanor of the participants.  In real life, most court reporters have mastered the art of the poker face, and attorneys rarely explode in anger.  Indeed, David Marburger, the attorney who took the deposition in the lawsuit against the Cuyahoga County Recorder’s Office, maintains in a comment submitted to the New York Times that his questioning style was dramatically different:

The video is hard to watch b/c it is so unlike th[e] actual atmosphere, which the transcript can’t convey.  I wasn’t angry; I was amused.  I just sat back in my chair and threw out questions to see how far the witness would go with what I viewed as a charade.

At the same time, the situation depicted here—witness is afraid to concede something banal, and gets backed into a corner—is familiar to everyone who has attended a fair number of depositions.

There is nothing natural about depositions, which are somewhere in between an interview and an interrogation (with objections thrown in for good measure).  If the stakes are sufficiently high, everybody shows up thoroughly prepared, which drastically reduces spontaneity.  The attorney who does the questioning often wants to get information the witness does not want to give up, and witnesses tend to be suspicious of even the most innocuous questions.  Add the self-consciousness that results from everyone’s awareness that a verbatim record is being created—and often a video recording as well—and you have a recipe for awkward dialogue.

The deposition segment kicks off a new series in the New York Times, in which actors dramatize actual transcripts from legal proceedings.  Hopefully future installments will live up to the standard set by the first dramatization.  I look forward to more opportunities to laugh at some of the weirder aspects of the world we inhabit.

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