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A long time ago I participated in a complex civil litigation case which involved a construction project gone wrong.  The details do not really matter.  I represented the plaintiff in the matter.  The case was difficult enough but my client’s expert’s deposition added a new level of complexity I had not contemplated.

Depositions are factual statements taken under oath as part of the discovery/information process.  It’s a preview of the other side’s cross-examination of a witness at trial.  There are several reasons to depose a witness: first, it provides a oppourtunity to confirm what you know about a case; second, it gives you an idea of what the other side knows and if there any problems on the horizon; third, it sometimes provides a chance to settle a case without further expense.  The other side in this case had to depose our expert in order to assess where we all stood, pre-trial.

This particular case was very fact intensive with reports, statements, and other information in great quantity.  We had to associate an expert to evaluate all of the facts and condense them into a citable report.  The expert hired was a tier one professional who did not come cheap.  He spent days reviewing material and preparing his summary.  He also generated many questions, all important to our legal position.  These questions necessitated the client’s active participation in their answering.  For several months the expert requested this participation and was largely rebuffed.  The client was not unwilling to help rather, he always seemed to drift to other subjects and find excuses for delaying his responses.  We scheduled several (expensive) all day meetings intended to get the client on the same page with the expert.  The meetings never answered some questions.

Thus, the expert was left to guess at some factors and to do his best to assess the facts on his own.  He did a great job overall.  His report served as an excellent basis to proceed in the case.  At his deposition, he defended his positions with great skill, confident his findings supported the plaintiff’s position.

My role was to “defend” the expert during the deposition.  The other side was represented by two attorneys who both took active roles in the examination.  These gentlemen were extremely professional and the expert was not at his first rodeo.  Thus, my job should have been fairly simple.  In such sessions the defending attorney usually requests question clarification when necessary and objects for the record if some questions over-reach the allowable scope of discovery.  The questions may still be asked and answered, the objections take effect if called for later at trial.

Out of professional courtesy, everyone agreed to depose the expert at his metro-Atlanta office, several hours away from mine.  I arrived extra early to confer with the man and plan for any expected troubles.  We had a good meeting and agreed things looked pretty good.  The client was supposed to meet with us in a last-ditch effort to reveal misplaced information.  He showed up with little time to spare, along with the other attorneys and the court reporter.

The opposing side had read and were familiar with our expert’s preliminary report.  Their questions were efficient and run of the mill.  However, my client began at once to exhibit overly odd behavior.  He was restless, talked to himself, talked to me (interrupting my train of thought), and interfered with the questioning to the point that I politely requested a break to speak with him in private.  He then agreed to calm down.

It did not last.  After interrupting several more times, the questioning attorney directed his attention to my client’s disruption.  I once again took him aside for a talk.  It did not take this time.  The client seemed concerned that the expert was not answering certain questions sufficiently as those questions required the information the client was supposed to deliver to the expert but never did.  He was suddenly concerned that the expert did not have all facts.  I reassured him things were going well and asked if he had the additional information, even at the late hour.  He did not.  I cautioned him not to interrupt again and back we went.

Then, during the ordinary course of the questioning, the client went berserk.  He began to only talk (about the questions and other things).  He snatched my note pad and began writing me cryptic notes I did not understand.  I ignored him at this point.  Then he began to pace around the room like a tiger in a cage.  He stopped and talked behind the expert.  He looked over the other attorneys while they spoke.  He talked to the court reported.  I felt a little sick. 

At some point one of the opposing lawyers requested a break so I could attempt to regain control of my client.  I should have told him to leave or threatened to quite myself.  Instead, I pleaded with him to keep from getting himself held in contempt or somethingfor interference. 

We resumed after lunch and went on for the rest of the afternoon.  My client at least remained seated for the most part but he was of no help to me whatsoever.  Usually, a lawyer will ask a present client some questions in order to assist his understanding of the present matter.  I knew it was a lost cause.  I did request that we have a meeting immediately after the session, a get with Jesus prayer meeting, if you will.  He agreed.

However, after the deposition ended the client disappeared.  This did give me a few minutes to apologize to the other side and the reporter.  I assumed man-tiger had gone to his car for something.  I ended up in the expert’s executive office talking about the merits of the matter and the oddity of the day’s event.  Neither of us had ever seen anything like it.  After about an hour we realized our client had not joined us.  I got up and looked for him but found no sign of him in or outside of the office.  Honestly, I was a little relieved.  However, back in the expert’s office a few minutes later the client called.  He reported he was almost back to my office and that he knew where the missing facts were located.  I guessed that he did not, in fact, know anything about the facts and that he must be driving over 100 miles per hour.

My partner later reported to me that the client did stop by a little more than one hour after the deposition was finished.  He rushed in yelling and frightened several other clients.  He ransacked his own files and left muttering to himself.  No facts ever came forth.

Around this time the sun was setting and the expert and I were tired, numbed, and hungry.  We decided to get dinner and drinks.  I called a friend in the area and we all met at a local pub.  There I attempted triage of my mind via single-malt scotch.  It worked and after sobering up I made the long drive home.  By the time I was in the car my brain was dead and I probably would not have passed a road-side sobriety test even if I had not consumed anything.  I didn’t care at the time and, fortunately, there was no incident on the highway.  I stopped in the office after midnight and wrote myself a memo detailing the unusual circumstances of the day.

I learned several things from this affair.  Most importantly, I learned to identify disturbed clients before agreeing to represent them.  I also concluded that all clients needed extensive preparation before depositions with adequate warnings about proper conduct.  In cases like this one I decided the absence of the client would be in the client’s best interests.  I also reflected on the fact that people are not perfect and that patience is a virtue. 

In the end, thanks to the expert’s hard work, the deposition was a success for us.  I also came away a better attorney.  Subsequent depositions, no matter how arduous, didn’t seem that bad by comparison.  I hope you learned a little something from this story.  Maybe not.  Maybe I just needed to vent.  Anyway, always follow paid professional advice, keep quiet when necessary, and keep your speed reasonable.  My head hurts now…

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